The 2018 Eighth CEDR Mediation Audit has been released. In gathering the data CEDR received responses from 336 mediators. 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 2016 – 2018.

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 2018 Eighth CEDR Mediation Audit report finds that approximately 12,000 mediations take place each year in England and Wales. This represents an increase of 20% since 2016.

The report confirms that direct ad hoc mediation referrals have stabilised since 2016, but the use of mediation schemes has risen by 45% since 2016 and now accounts for some 4500 mediations annually.

Finally, the report confirms that 85% of all non-scheme commercial mediations are referred to just 200 mediators nationally.

Mediator Experience

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

• 62% = Advanced Mediators – described as ‘reasonably’ or ‘very’ experienced as lead mediator (up from 54% in 2016)
• 19% = Intermediates – described as having ‘some’ or ‘limited’ lead mediator experience (down from 22% in 2016)
• 19% = Novices – described as being qualified but having no experience as lead mediator. (down from 24% in 2016)

Mediator Diversity

• The average age of the female mediator has increased by one year to 51, whilst the average age of the male mediator has increased from 57 to 59.
• 35% of respondents to the survey were female (no change from 2016).
• 10% of respondents described themselves as black, Asian and minority ethnic.
• 49% of respondents were from the legal profession (up from 43% in 2016).
• 5% of mediators reported a disability
• 2% of mediators identified themselves as lesbian, gay or bisexual

 Mediator Fees

The report finds that the average fee for a one-day mediation for the less experienced mediator is £1512.00 (down from £1545.00 in 2016), whilst the average for more experienced mediators is £3627.00 (down from £4500.00 in 2016).

Breaking down the figures in more detail, 44.6% of the average mediator fee for a one-day mediation was between £501.00 – £2000.00 (up from 34.8% in 2016). The next highest category was £2001.00 – £2500.00 which covered 18.2%. Pro bono work has reduced from 10.4% in 2016 to 3.1% in 2018 – I think this may reflect an increasing appreciation of the mediation process by those professions which engage it.

Mediator Characteristics

CEDR also surveyed lawyers to find what factors were most important in determining which mediator they would appoint. I set out below the top 5 in 2018 and, for comparison, the top 5 as they were in 2016:-

2016

1. Professional experience – experience & status
2. Professional reputation – mediation style
3. Sector experience
4. Fee levels
5. Professional background/qualifications

2018

1. Availability
2. Professional reputation – experience & status
3. Sector experience
4. Fee levels
5. Professional reputation – mediation style

Interestingly, in the 2018 CEDR Mediation Audit, ‘Availability’ has returned as the most important factor for an instructing solicitor in 2018, as it was in 2014. This might reflect closer relationships between solicitors and individual mediators who are able to work more closely together

Mediation Success Rate

Between 2016 – 2018, the overall success rate of civil and commercial mediation has increased to 89% (up from 86% in 2016), and the breakdown of this figure has changed slightly.

The proportion of cases that settle on the day of mediation has increased to 74% (from 67% in 2016), but the proportion of cases which settle shortly after mediation has fallen to 15% (from 19% in 2016).

The CEDR Mediation Audit report also finds that the work of a mediator for each mediation is now an average of 16.3 hours’ work – a decrease of 2.3 hours compared with 2016.

Mediator Performance

83% of civil and commercial mediators were rated by lawyers as performing ‘quite well’ or ‘very well’ (up from 81% in 2016). 4% were rated as performing less then adequately (down from 5% in 2016).

Mediator Style

The report found that whilst mediators still typically begin a mediation in a facilitative style they do tend to move towards a more evaluative approach when the process gets stuck.

Mediation Contribution Statistics

The report makes the following observations:-

• Ignoring mega-cases, the total value of mediated cases each year has increased from £10.5bn in 2016 to £11.5bn in 2018.
• Since 1990, when civil & commercial mediation was effectively launched in the UK, the total value of mediated cases is now almost £110bn (up from £85bn in 2016).
• By resolving disputes more quickly using mediation rather than going to court, commercial mediation is expected to save British business approximately £3bn each year in wasted management time, damaged relationships, lost productivity, and legal fees (up from £2.8bn per year in 2016).
• Since 1990 mediation has brought about savings of £28.5bn (up from £22.6bn in 2016).

In producing the above savings, the aggregate fee income value of the commercial mediation profession is now £30m (up from £26.5m in 2016).

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:-

• commercial mediation
• workplace mediation
• professional negligence
• personal injury
• probate

Mediator Advice

Mediators were also asked what piece of advice they would like to give to participants if they were able to do so. Of the 150 responses, these were the most common:-

• Prepare for the day – not only by thinking about your needs and expectations but also doing the same thing thinking about your opponents. Read Getting Past No. Arrive early. Check the parking.
• Being in the right does not bring anybody closer to a mutually beneficial position.
• Reflect on the offer you are making to the other party – if this offer was put to you how would you feel? Is the offer realistic?
• Do more preparation! Come to the mediation with a properly executed risk assessment and a realistic range of acceptable outcomes, based on needs rather than just regurgitating a position that has already been stated in correspondence, pleadings and the position statement (which is frequently itself a rehash of the pleadings).
• I always want to tell very senior lawyers to try to take their own emotion out of the process – it isn’t about them, it’s about their client!

Solicitor Caseloads

Interestingly, the 2018 Eighth CEDR Mediation Audit asked lawyers to breakdown how their cases from the previous 12 months had settled. 45% of cases were reported to have been settled via mediation. The next highest form of settlement was via negotiated settlement before issue of court proceedings (24%), and then negotiated settlement – after issue of court proceedings (12%). Unsurprisingly, only 4% of cases settled at trial.

My Thoughts

The 2018 Eighth CEDR Mediation Audit shows that the mediation market continues to mature – schemes are becoming more widely used and may be part of the reason for the slight fall in mediation average fees.

The market for direct mediation referrals continues to be dominated by a small group of experienced mediators, but that group is growing.

The CJC have previously consulted on the feasibility of making mediation mandatory. Further information is awaited but if a decision to make mediation mandatory is taken, then the entire market could change swiftly.

What isn’t in doubt is the effectiveness and quality of the mediation process, and the overall quality of mediators in England and Wales. Accounting for 45% of settled cases, mediation appears to be an important tool for the average lawyer to call upon.

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

Joseph Mulrooney

——————————————-

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, and Workplace mediator. To instruct him in any of these fields, or to request his mediator profile,  please visit the Our Mediators page.

The 2018 Eighth CEDR Mediation Audit can be found online.