Mediators ready for compulsion as caseload tops pre-Covid level

Massie: Mediation has arrived at its desired destination

The number of civil and commercial mediations has hit 17,000 a year, 3% higher than the pre-pandemic level, new research has found.

The Centre for Effective Dispute Resolution (CEDR) also found there was capacity and willingness in the market if the government presses ahead with making mediation compulsory for county court cases worth up to £10,000.

CEDR’s biennial Mediation Audit, now in its 10th edition, covered the two years to September 2022 and polled 328 mediators.

It estimated that the number of mediations carried out in the year before the pandemic struck in March 2020 was 16,500.

Activity dropped by over a third in the Covid-hit period of March 2020 to September 2021, but then rose to 17,000 for the year to September last year. While a “modest” increase on the pre-pandemic figure, it represented “a strong bounce-back following a period of diminished activity”.

However, it was still only around 7% of all contested civil cases in England and Wales each year.

Settlement rates remained high – 73% on the day and a further 20% in the following days and weeks.

Though the proportion of mediations carried out online fell from 89% of cases to 64%, CEDR said it “seems to show that the nature of the field has permanently changed”.

With the government considering compulsory mediation for cases worth up to £10,000, researchers asked mediators about their fees and capacity for such work. The median hourly rate was £150, with the average number of hours spent on a case estimated at five, making a total of £750.

CEDR said there was “general evidence” of “considerable surplus capacity within the mediation marketplace and that, provided that they achieve a sustainable income level, the majority of mediators are currently more concerned with gaining experience through taking on more cases than they are with increasing fee rates”.

Linked to this, mediators were asked about their perceptions of litigants in person (LiPs). Only a fifth (20%) of mediators thought LiPs had a “good understanding of the legal issues involved in their case”, a figure which rose to 33% for mediations involving sums of over £25,000.

Only 31% of mediators thought LiPs could represent themselves effectively in small claims, rising to 45% for those with cases worth over £25,000.

However, mediators were evenly divided on whether LiPs were disadvantaged if they came up against a party with a lawyer, although 47% thought mediations involving LiPs were harder to settle.

The majority of mediators never experienced any problems with enforceability of mediation settlements – 74% for cases worth under £25,000 and 66% above this level.

There was strong support for the regulation of mediation, with 88% backing the move, and the Civil Mediation Council the preferred choice for regulator.

Graham Massie, CEDR’s chief operating officer and author of the audit, said the lack of diversity among mediators was “still a concern”, with only 8% coming from ethnic minority backgrounds compared to 17% of solicitors overall.

“Mediation has arrived at its desired destination within the mainstream of the litigation system, but its race is far from run,” he went on.

“The move towards mandatory mediation appears to be the next challenge on the horizon, and this audit suggests that our profession is well placed to meet the need – perhaps, finally, the long-running concern about there being an excess supply of aspiring mediators will turn out to be a virtue?”

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