Tessa attended (virtually) the launch of CEDR’s 10th Mediation Audit this evening.
The author Graham Massie presented the headline figures which help to consider trends within the mediation field. This audit also explored the readiness of the field to accommodate mandatory mediation.
328 practising mediators responded to the call for audit information. Lawyers were also canvassed in respect of their perspectives of the mediation process.
Size of the Market
The pandemic had a significant impact on the number of mediations being conducted, 35% decline in cases and also a massive shift to online.
This audit shows a bounce back to the levels pre-pandemic (16,500 cases p/a 2 years ago) and 3% growth since lockdown with 17,000 cases being mediated per annum.
Of those 17,000 mediations, a significant proportion were conducted online, 60% online. During lockdown this was 80% so it would appear that online mediations are here to stay.
There is particularly a strong interest in smaller claims being mediated online to save on travel expenses for fixed fee mediations.
These remain high and consistent at 92% (72% settle on the day, 20% very shortly thereafter).
There is a strong feeling amongst mediators that even if there is no settlement on the day, mediation still adds value in helping to narrow issues.
Average Time in Mediation
Hours in mediation are just under 8 hours (7.4). This is the same as 2018 audit and slightly higher than 2020 (6.8).
Total time in mediation including preparation and post mediation is 15.8 hours, slightly higher than the last audit (14.6).
Changes in the Process
A number of stages in the process were explored by mediators and lawyers in terms of popularity and effectiveness such as pre-mediation contact, pre-mediation submissions and joint meetings.
There were a couple of interesting mismatches between mediators and lawyers. Mediators felt that pre-mediation contact was less effective now, the lawyers disagreed.
Lawyers perception is that pre-mediation submissions that largely comprise the pleadings are less popular and less effective, mediators did not agree.
Demographics of Mediators
Female mediators comprised 37% of mediators who responded. This is down from 41% in 2020. A comparison was drawn between female law firm partners which comprise 33% (Law Society).
Ethnic minority mediators remain at 8% which is disappointing that there has been no growth in this area. The Law Society comparison is 17%.
Mediators aged under 50 has increased from 25% to 41% which demonstrates the next generation are coming through.
The age of an average male mediator is slightly increased from 60 to 63. The age of an average female mediator has increased from 53 to 54.
The professional background of mediators remains weighted towards lawyers. There has been an increased of lawyer mediators from 44% to 58%.
In terms of those mediators who describe themselves as advanced or experienced, the percentage of lawyer mediators is even higher an 67% (previously 56%).
65% of those mediators who responded described themselves as ‘full time’ mediators.
A junior mediator on average charges £1781 for a 1 day mediation - this is a 20% increase since 2020.
Experienced mediators on average charge £3893, an 8% reduction on 2020.
Readiness for Mandatory Mediation
The survey explored the capacity in the field for automatic referral and concluded that there was more than sufficient capacity. Mediators surveyed would be willing to give 80 - 83 days p/a to automatic referral mediations. Across the CMC this would equate to 54,000 available days.
25% of those surveyed said they would do these mediations for £460 a day.
86% would be happy to do it on a fixed fee basis.
The conclusion was therefore that the field has sufficient capacity and sufficient willingness to undertake automatic referral mediations.
Other considerations included a preference for these to be online if travel expenses were not included. Also, for those lower value cases with self-represented parties there would need to be consideration given as to how these would be administered as the administration would be disproportionate to the fees.
Impact of Litigants in Person
The survey identified that there were significant shortcomings in a litigant in person’s abilities at mediation, particularly in the lower value cases.
Only 30% (cases under £10,000) were able to represent themselves effectively and 60% would look to the mediator for advice. This indicates a need for more education in the mediation process for litigants in person.
That being said, only 50% of those mediations took longer to settle so the challenges of litigants in person are not having a significant impact as the mediator can manage them.
Enforcement of Settlement Agreements
The survey showed that problems with enforceability of settlement agreements are very rare.
The survey asked mediators and lawyers whether the mediation profession should be regulated. 88% of mediators said yes and 76% of lawyers said yes.
82% of mediators said the regulator should be the CMC, 75% of lawyers agreed with that.
Contribution to Society
The total value of cases mediated annually is estimated to be £20 billion. The savings to business due to mediation are estimated to be £5.9 billion.
The takeaway points from this audit are
1. The profession has recovered from the pandemic, albeit changed (online mediation).
2. Mediation is delivering a huge value to society.
3. There is still more that can be done. 17,000 p/a are being mediated but it is estimated 247,000 civil cases are going through the courts p/a.
4. Diversity in the profession remains a problem.
The full Audit will be available from 2 February 2023.