Last year CEDR conducted a survey, receiving responses from 319 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 2014 – 2016.

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.

Mediator Experience

Of the 319 mediators who responded to the survey, they could be split into 3 categories:-

• 54% = Advanced Mediators – described as ‘reasonably’ or ‘very’ experienced as lead mediator
• 22% = Intermediates – described as having ‘some’ or ‘limited’ lead mediator experience
• 24% = Novices – described as being qualified but having no experience as lead mediator.

Mediator Diversity

• The average age of the female mediator is 50, whilst the average age of the male mediator is 57.
• 35% of respondents to the survey were female (up from 26% in 2014).
• 92% of respondents were white.
• For the first time, less than half (43%) of respondents were from the legal profession. This is a continuing trend – as recently as 2012 62% were from the legal profession.

Mediator Earnings

The report finds that the average fee for a one day mediation for the less experienced mediator is £1545.00, whilst the average for more experienced mediators is £4500.00.

Breaking down the figures in more detail, 34.8% of the average mediator fee for a one day mediation were between £501.00 – £2000.00. The next highest category was pro bono work at 10.4% – i think this reflects (i) the eagerness of newly qualified mediators to undertake unpaid work to gain experience, and (ii) the presence of community schemes which often run on a charitable or voluntary basis.

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 and – for comparison – the top 5 as they were in 2014:-

2016

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

2014

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

Interestingly, whereas ‘Availability’ was most  important factor for an instructing solicitor in 2014, it has now  dropped to number 6. This might suggest that mediators are less busy than two years ago, or more available mediators now. Alternatively it might reflect closer relationships between solicitors and individual mediators who are able to work more closely together

Mediation Success Rate

Between 2014 – 2016, the overall success rate of civil and commercial mediation remains constant at around 86%, but the breakdown of this figure has changed slightly.

The proportion of cases that settle on the day of mediation has fallen from 75% to 67%, but the proportion of cases which settle shortly after mediation has increased from 11% to 19%.

The report also finds that the work of a mediator for each mediation is now an average of 18.6 hours’ work – an increase of 2 hours compared with 2014. This might suggest that mediations are becoming more difficult, which in turn might go some way to explaining the increase in the number of settlements reached in the period of reflection that follows the mediation rather than on the day itself.

Mediator Performance

81% of civil and commercial mediators were rated by lawyers as performing ‘quite well’ or ‘very well’. 5% were rated as performing less then adequately.

Mediator Style

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

Jackson Reforms

41% of mediator respondents stated that the Jackson Reforms have resulted in an increase in the number of mediations they are receiving. 29% said that mediations have proven easier to settle successfully since the Jackson Reforms came into effect.

Mediation Contribution Statistics

The report makes the following observations:-

• Ignoring mega-cases, the total value of mediated cases each year has increased from £9bn in 2014 to £10.5bn in 2016.
• Since 1990, when civil & commercial mediation was effectively launched in the UK, the total value of mediated cases is almost £85bn.
• By resolving disputes more quickly using mediation rather than going to court, commercial mediation is expected to save British business approximately £2.8bn each year in wasted management time, damaged relationships, lost productivity, and legal fees.
• Since 1990 mediation has brought about savings of £22.6bn.

In producing the above savings, the aggregate fee income value of the commercial mediation profession is £26.5m.

Future Outlook

33% of respondents expect to be performing more mediations in future, although many less experienced mediators continue to encounter difficulties in finding opportunities. The feeling persists that there is an oversupply of accredited mediators for a marketplace which is relatively small and also dominated by a small number of established players.

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

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

My Thoughts

Since the report was published last year the government has announced major reforms to the Personal Injury field, which could decimate the lower value end of that sector. The consultation ended only recently, and the outcome is awaited. If the reforms are pushed through in their present form then it is to be expected that there may be some impact on the number of mediations in personal injury work although i don’t imagine large volumes of  low value personal injury cases are mediated. I could be wrong though!

The NHS Litigation Authority has also recently completed a tender for a mediation service for certain cases. 3 mediation providers have been awarded the contract, and so this might also have an impact on the availability of clinical negligence personal injury mediations for the wider market.

The frequent talk of extending fixed costs further could see, in my opinion, more opportunities for commercial and civil mediation. For example, where a solicitor is instructed on a fixed fee basis to resolve a commercial dispute then mediation is an attractive opportunity to do so quickly, inexpensively, and successfully.

between 2014 – 2016 the mediation market grew by 5% domestically. I believe the mediation field will continue to grow and evolve. Awareness is growing, and more people are realising the benefits mediation can bring to their businesses.

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