Is It a Perfect Time to be a Mediator?

The recent publication of the bi-annual CEDR mediation survey and the long awaited GPC Series Final Report seem to suggest so. (Links to both at the foot of this article)

Mediation has never been more popular or widespread. There are more cases than ever. It's all over the press and more mediators are sharing in the high fees that mediation continues to attract.

Well if all of this is true, why then is there a perception that mediation remains a greatly under-utilised service and why then do mediators still complain of little or no work?

I have a theory, which I've outlined in a previous article (I think it's it's a pretty solid one, see for yourself).

But let me share my thoughts on the highlights and lowlights of the CEDR mediator survey and reflect on some of the key the findings from the GPC report because I think both tell an interesting story.

CEDR - The Centre for Effective Dispute Resolution has been busy gathering the views of mediators in the UK and across the pond. I'm no statistician nor am I aware of the research methodology behind the survey so I was left a little curious and confused by some of the findings so my conclusions are simply, well...conclusions.

Three Findings of Interest

For me there were three notable items that piqued my curiosity about the mediation market in the UK. (CEDR also polled mediators in the US but no data has yet been published about the US results to my knoweldge).

1. First it seems that commercial cases have risen by approximately 20% over the past 2 years. This seems to be consistent with anecdotal reports and it's encouraging to know that the trend line, whilst not exactly of hockey stick proportion, is at least heading in the right direction.
2. Second it appears that average daily rates for commercial mediation have dropped by roughly 19% (at the high end) from ￡4500/day to a measly ￡3627! And at the lower end by about 2% from ￡1545 to a paltry ￡1512/day! What does this mean? Well, if you are doing a 100 mediation per year then it doesn't matter because you are, as we say, quids in! Are clients becoming price sensitive? Or maybe as the volume of cases increase, so too does the pool of mediators attending to those cases. It's possible that mediators stepping up into the 'first division' are not increasing their fees commensurate to their new elevated status as Advanced Mediators!
3. Third, it seems that grey hair and wrinkles still matter, oh and if you are white and male then you're also at an advantage. As the average age of the commercial mediators polled was north of 50 years old. 35% of respondents to the survey were female and less than 10% categorised themselves as being from Black, Asian and minority ethnic groups. Getting a more diverse pool of mediators into the mediation room seems a perennial struggle but one CEDR seemed committed to addressing.

The Global Pound Conference (GPC) - 'The goal of the Global Pound Conference Series was to create a conversation about what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts.  The approach taken involved engaging all stakeholders in the field of dispute prevention and resolution worldwide via locally-based events. The events gathered data intended to enable the dispute resolution market and all participants to consider whether there are reasons (and if so how) to adapt existing services to be optimally aligned to disputants’ needs and means.' (taken directly from the GPC website)

The key findings were:

1. Parties in mediation want, above all else, efficiency when it comes to resolving their disputes. Efficiency in time will translate to a reduction in cost as well as the opportunity cost of being embroiled in a dispute. Mediation is evolving and there are many hybrid processes now emerging that give clients the flexibility they want. (We cover most of these multi-tiered ADR methods in our online Commercial Mediation Refresher Course in case you are interested :-)
2. Parties also want and expect greater collaboration from their advisors in dispute resolution. According to the report this presents a challenge for external lawyers who are, by and large, predisposed to act adversarially. (It's not their fault, that's how they were brought up but times are changing.) So learning to work with advisors that are less familiar with mediation also opens up opportunities for the commercial mediator.
3. Global interest is growing and there is universal recognition that parties should be encouraged to consider processes like mediation before initiating adjudicative dispute resolution proceedings. Reaching parties further 'up-stream', helping to educate and promote these non-adversarial processes will help cultivate trusted relationships with key stakeholders, and potentially lead to less adversarial processes downstream thus delivering on their efficiency interests.
4. The key players in helping to change corporate dispute resolution culture are in-house counsel. A new generation of in-house counsel will challenge the resistance often experienced from external lawyers. There is a role for commercial mediators who are sharp and savvy enough to see this and become the trusted advisor. This requires a whole new set of skills that are not too far away from what mediators currently possess. 

There's no question that the mediation market is growing and there is greater consumer awareness. Mediation schemes are on the rise and there are very interesting developments wider afield with the UNCITRAL Singapore Mediation Convention as drafts have been finalised for a Convention on the Enforcement of Mediation Settlements.

So just like my school report; mostly good news but always room for improvement.

Click here to read more about why mediators complain so much.

Links to - GPC Final Report and CEDR Mediator Survey 2018