The 2023 Tenth CEDR Mediation Audit has been released. In gathering the data CEDR received responses from 328 mediators – approximately 50% of the individual membership of the Civil Mediation Council. Their report states that this represents over 50% of the individual membership of the Civil Mediation Council. I’m a mediator and member of the CMC.

The aim of the survey was to assess how the mediation market, and attitudes towards mediation, have changed between 2020-2022.

The aim of this article is to provide a brief review of the report, and to pull out some information that I feel might be of interest.

Mediation Marketplace

The 2023 Tenth CEDR Mediation Audit report finds that approximately 17,000 mediations take place each year in England and Wales – an increase from 12,000 in 2018.

The report confirms that direct ad hoc mediation referrals have decreased since 2020 whilst referrals from Service Providers has increased, and the use of mediation schemes has shrunk slightly since 2020.

Finally, 64% of commercial mediations were carried out online.

Mediator Experience

Of the 336 mediators who responded to the survey, they could be split into 3 categories:-

• 76% = Advanced Mediators – described as ‘reasonably’ or ‘very’ experienced as lead mediator (up from 65% in 2020)
• 16% = Intermediates – described as having ‘some’ or ‘limited’ lead mediator experience (down from 19% in 2018)
• 8% = Novices – described as being qualified but having no experience as lead mediator. (down from 19% in 2018)

Mediator Diversity

• 67% of Advanced mediators were qualified lawyers, and 76% said they are full time mediators (however 49% of these have said they carry out less than 10 mediations a year).
• The average age of the female mediator has increased by one year to 54, whilst the average age of the male mediator has increased from 60 to 63.
• 8% of mediators were aged under 40
• 37% of respondents to the survey were female (down from 41% in 2020).
• 8% of respondents are from ethnic minority groups.
• 6% of mediators reported a disability (up slightly from 5% in 2018)
• 5% of mediators identified themselves as lesbian, gay or bisexual (up from 2% in 2018)

 Mediator Fees

The report finds that the average fee for a one-day mediation for the less experienced mediator is £1781.00 (up from £1481 in 2020), whilst the average for more experienced mediators is £3893.00 (down from £4247 in 2020).

Breaking down the figures in more detail, 37.3% of the average mediator fee for a one-day mediation ranged between £501.00 – £2000.00 (down from 44.9% in 2020). The highest single category was £1251-£2000 at 19.1%. The next highest category was £2001.00 – £2500.00 which covered 12.7%. Pro bono work has reduced from  3.1% in 2018 to 5.5% in 2022.

Mediator Characteristics

CEDR has previously surveyed lawyers to find what factors were most important in determining which mediator they would appoint. CEDR appear to have discontinued this in its most recent audit.

Mediation Success Rate

Between 2020-2023, the overall success rate of civil and commercial mediation has increased to 92% (down from 93% in 2020), and the breakdown of this figure has changed slightly.

The proportion of cases that settle on the day of mediation has remained at 72%, but the proportion of cases which settle shortly after mediation has fallen to 20% (from 21% in 2020).

Interestingly, settlement rates for advanced mediators have fallen from 92% in 2020 to 85% in 2022.

Mediation Process

The CEDR Mediation Audit report also finds that the work of a mediator for each mediation is now an average of 15.8 hours’ work – increasing from 14.6 hours in 2020. The figure is broken down as follows:-

• Preparation (reading mediation materials and contact with parties) – 6.3 hours
• Mediation (time spent in session) – 7.4 hours
• Follow up (post mediation comms or ongoing role) – 2.1 hours

An average of 4-5 hours of mediators’ time appears to be unpaid.

Lawyers have reported a growing preference for the provision of tailored submissions for the mediation rather than simply bundles comprising the pleadings to date. Lawyers also report increased popularity and effectiveness of targeted joint sessions – e.g. joint opening sessions with lawyers only, or joint meetings during the mediation with party representatives only. Mediators have reported an increase in popularity of pre-mediation contact with parties and lawyers but have reported both as being less effective than previously.

Mediation Contribution Statistics

The report makes the following observations:-

• Ignoring mega-cases, the total value of mediated cases each year has increased from  £11.5bn in 2018 to £20 billion in 2022.
• Since 1990, when civil & commercial mediation was effectively launched in the UK, the total value of mediated cases is now almost £195 billion
• By resolving disputes more quickly using mediation rather than going to court, commercial mediation is expected to save British business approximately £5.9bn each year in wasted management time, damaged relationships, lost productivity, and legal fees (up from £3bn per year in 2018).
• Since 1990 mediation has brought about savings of £50bn (up from £28.5bn as at 2018).

In producing the above savings, the aggregate fee income value of the commercial mediation profession is now £65m (up from £30m in 2018).

Changes & Trends

25% of mediators reported a resistance, largely driven by lawyers, to joint sessions at the beginning of a mediation. However, a number found that joint sessions later in the day are becoming more common.

Both lawyers and mediators noted that the quality of mediation bundles have declined and are being supplied to the mediator later than before.

Future Outlook

In terms of identified growth areas, the most common responses were:-

• civil and commercial mediation
• professional negligence
• workplace mediation
• personal injury

Mandatory Mediation & Litigants in Person

With the impending introduction of mandatory mediation for those claims in the small claims track, worth up to £10,000. This will likely see more involvement of litigants in person (LIPs) at mediations and so the survey sought opinions from the mediators:-

• 60% of mediators reported that LIPs will look to the mediator for advice on the merits of their case
• 50% of mediators reported that in cases where one party has legal representation and the other doesn’t, will see the other party at a disadvantage
• 47% of mediators reported that mediations involving LIPs are generally harder to settle
• 50% of mediators reported that mediations involving LIPs generally take longer to settle

The above percentages change only by a couple of percent as case value moves up – suggesting that the difficulties aren’t linked simply to value of the dispute.

Mediator comments suggested that more preparatory work is required ahead of the mediation where LIPs are involved, and that greater educational content should be made available generally.

Enforceability

Questions that often arise in discussions regarding mediation is whether the mediation settlement agreement document is legally enforceable. The UK has signed the Singapore Convention on Mediation (which will apply to international mediations only) but it has not been ratified yet. For domestic mediations, parties often incorporate settlement terms into a Tomlin Order or Consent Order for disputes where court proceedings have already been issued.

For disputes under £25,000, 74% of mediators reported they had never encountered an instance of a settlement agreement not being adhered to by the parties. A further 19% reported it had happened only ‘rarely’.

For disputes over £25,000, 66% of mediators reported they had never encountered an instance of a settlement agreement not being adhered to by the parties. A further 25% reported it had happened only ‘rarely’.

Where it had happened, it was reported that it was due to one party attempting to change their mind or claiming there was some uncertainty about the settlement terms, or one party was unable to raise sufficient funds by an agreed deadline. A good mediator will spend time working with the parties to discuss the proposed and agreed settlement terms to make sure that they are robust, accurate, achievable, and agreed by all.

Market Regulation

88% of mediators reported that they felt the market should be formally regulated. 82%% of mediators felt that the Civil Mediation Council was best placed to regulate the profession, with 11% favouring a new regulatory body. These figures were broadly matched in solicitor feedback where 76% supported regulation for the mediation market, and 75% favoured the Civil Mediation Council for this role.

My Thoughts

The 2023 Tenth CEDR Mediation Audit shows that the mediation market continues to mature – I agree with one quoted comment that ‘it is an exciting time to be a mediator’. However I also agree with another comment, name that mediation ‘is an extremely difficult field to get started in’. 

I thought the response to Future Growth Areas had a glaring omission – SEND mediation. Mediation is already an integral part of the appeal process for parents and young people experiencing a SEND dispute. It isn’t mandatory (yet!) but the number of SEND mediations taking place is growing with each passing year.

Mandatory mediation is incoming for small claims up to a value of £10,000. This is expected to be delivered by expanding the existing small claims mediation service. however there are suggestions that mandatory mediation could be expanded to include claims valued between £10,000 – £25,000, using existing mediators and mediation providers. We’ll wait and see on this point. I do hold some reservations about mandatory mediation. Forcing unwilling participants to attend mediations does risk diluting the effectiveness of the mediation process, negatively impacting the current 92% success rate. It could also potentially impact the public perception of mediation as a tool for resolution as the success rate falls and unwilling participants forced to engage.

What isn’t in doubt is the effectiveness and quality of the mediation process, and the overall quality of mediators in England and Wales.

I’m happy to chat about mediation so feel free to get in touch, share this article, or comment.

Joseph Mulrooney

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A founder member of Mediatelegal, Joseph Mulrooney’s interest lies in growing the awareness and usage of mediation within UK industry. He is a qualified and accredited Civil, Commercial, SEND, and Workplace mediator. To instruct him in any of these fields, or to request his mediator profile,  please visit the Our Mediators page.

The 2023 Eighth CEDR Mediation Audit can be found online.