Better conflicts, Better outcomes, Better world

The TenthMediation Audit
A survey of commercial mediator attitudes and experiencein the United Kingdom

1 February 2023

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Introduction
This report marks the tenth occasion on which CEDR (The Centre for Effective Dispute
Resolution) has undertaken a survey of the attitudes of civil and commercial mediators toa range of issues concerning their personal background, mediation practice andexperience, professional standards and regulation, and priorities for the field over the
coming years. The primary focus of the survey is to assess how the market and mediation
attitudes have changed over the past two years.
•

The survey was undertaken using an internet-based questionnaire, which was
open to all mediators in the United Kingdom, regardless of organisational
affiliation. It was publicised by way of CEDR’s website and direct e-mail to themediator contacts both of CEDR and of other leading service providers andmembers of the Civil Mediation Council.

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This particular report is based upon the 328 responses that were received frommediators based in the United Kingdom. This is a statistically significant sample
that represents approximately 50% of the individual membership of the Civil
Mediation Council. As in any survey, not all participants answered every question.

•

Alongside our survey of mediator attitudes, we conducted a parallel survey oflawyer attitudes in order to provide a client-oriented perspective to some of thequestions raised, and we have cross-compared the responses from the lawyers’
survey with that of the mediators’ survey.

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It is important to emphasise that this is a survey of the civil and commercial
mediation landscape, a field we have defined as encompassing any and all
mediation activity that might reasonably fall within the ambit of the Civil
Mediation Council. This reflects the background of the surveying organisation,
CEDR, and the channels through which survey responses were canvassed.

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We do not, therefore, claim to cover either community or family mediation(although some of our respondents do report also being active in those fields).

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Furthermore, we do not include the statutory ACAS service or the HMCTS Small
Claims Mediation Service, quite simply because the scale of their activities would
each far outweigh the other findings of this survey.

CEDR is grateful for the support not only of its members, who make our importantresearch work possible, but also for the support and assistance of all of those who haveassisted us in identifying the research themes and promoting the survey. In addition, weare grateful for the time and trouble taken by all of those mediators who havecontributed their views and experience to our Audit.

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The mediation marketplace
Activity levels
On the basis of mediators’ reported caseloads, it is clear that the civil and commercial
mediation market in England & Wales has fully recovered from the slump caused by the
pandemic.
In the year to 31 March 2020 (i.e. the period immediately before the pandemic), ourprevious Audit estimated the overall size of the market as being in the order of 16,500
cases per annum. However, the impact of the covid-19 pandemic triggered a downturn inmediation activity, and overall activity dropped by 35% over the period March to
September 2021. In the past year, however, this deficit has been recovered and our latest
analysis shows that, for the year ended 30 September 2022, the total market was in theorder of 17,000 cases (i.e. about 3% up on pre-pandemic levels).

Within that 17,000 figure, the latest Audit confirms the emergence of online mediation
with 64% of commercial cases being conducted online. This figure is well below the 89%that we saw during the pandemic period but seems to show that the nature of the field
has permanently changed.

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As in previous Audits, a significant proportion of ad hoc mediations arise through directreferrals to mediators rather than going through service providers. For the first time,
however, our Audit reveals a reversal in the longer-term trend towards direct referrals,with 61% reported by mediators this year as compared to 74% of their caseload two years
ago. The Audit results do not offer any clear explanation for this change.

Mediator profiles
In terms of personal mediation experience, respondents were split between three broad
categories:o

76% Advanced mediators – who described themselves as “reasonably” or “very”
experienced;o

16% Intermediates – who categorised their lead mediator experience as “some” or“limited”;

o8% Novices – who were generally accredited but had no experience as a lead
mediator.

This overall profile is consistent with the trend observed in previous Audits, with anincreasing proportion of mediators now identifying themselves in the Advanced category(up to 76% from 65% in 2020 and 62% in 2018). This trend is mirrored by the changes inmediators’ professional backgrounds, with 67% of these Advanced mediators being
qualified lawyers, a significant increase from the 56% reported in 2020. Because it
generally takes a newly trained mediator some time to reach an Advanced level, thischange might suggest that lawyer mediators have been more successful in sustaining
their careers across the turmoil of the past few years. There is, however, still a sizeablegroup of successful mediators with a wide range of professional backgrounds, including
accountants, construction and workplace professionals, business consultants andmanagers.
The majority of Novice and Intermediate mediators reported personal involvement in no
more than four mediations a year. Advanced mediators reported more extensive
practices with 76% characterising themselves as “full-time” mediators (up from 60% in2020). Clearly, however, there is still a wide variation of activity within this group, with 49%(2020: 51%) reporting undertaking less than ten mediations a year. Amongst those whoare not full-time mediators but still have other jobs, an average of 19% of their professionaltime was spent working as a mediator.
The average female mediator who responded to our survey is 54 (2020: 53), whilst the
average male mediator is considerably older, at 63 (2020: 60). The Advanced mediatorgroup are two years older.

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Female involvement in the field has improved significantly since the 2018 level of 24% in
the Advanced group although, at 37%, it has slipped back a little since 2020 (41%). In thisregard, the mediation profession is, therefore, now quite close to comparators such as the
Law Society, 1 where 51% of solicitors in private practice (or 33% of private practice partners)
are women. The mediation profession does, however, still fall short in the area of ethnic
diversity where only 8% of respondent mediators report coming from ethnic minority
groups compared to 17% of solicitors.
6% of mediators report having a disability whilst 5% define themselves as being either
lesbian, gay or bisexual, both figures which are similar to the legal profession 2.

1“Trends in the solicitors’ profession Annual Statistics Report 2021”, The Law Society (September 2022)

2“Diversity Profile of the Solicitors’ Profession 2019”, The Law Society (November 2020)5

Mediator earnings
The Audit asked mediators about their earnings during the 12-month period from
October 2021 to September 2022 (i.e. the post-pandemic period). Firstly, we asked about
their average earnings for a typical one-day mediation; this revealed a wide range of
figures:

Averaging out these figures showed that:oaverage fees of the less experienced mediator group for a one-day mediation haveincreased by 20% over the past two years to £1,781 (2020: £1,481);ohowever, average fees for more experienced mediators have decreased by 8% to£3,893 (2020: £4,247).

By combining fee rates with reported activity levels, we can project average incomes fordiffering levels of mediator activity:oThose undertaking between 20 and 30 mediations a year are earning between£20,000 and £145,000 with an average of £81,000.

oThose mediators undertaking between 30 and 50 mediations a year are earning
between £110,000 and £390,000, with an average of £175,000.

oThose undertaking over 50 cases a year are earning are earning between £50,000
and £660,000, with an average of £312,000.

6Mediation outcomes
The overall success rate of mediation remains very high, with an aggregate settlement
rate of 92% which is not significantly different from our 2020 findings.

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Settlement rates amongst the Advanced mediator group have, however, slipped backfrom an overall 92% in 2020 to 85% this year.
Settlement rates reported by mediators were validated by the findings of our separate
survey of lawyers’ views.

The mediation process
We asked mediators to provide a breakdown of the number of hours they spent on a
typical mediation. This revealed that the average time spent has risen slightly since ourlast Audit, reversing the trend seen previously. The decrease since 2018 has apparently
come in the area of reading briefing materials, although other elements of the process
are taking slightly longer.

A significant proportion of mediator time continues to be unremunerated – an average of
4-5 hours was unpaid, either because the mediator did not charge for all of the hours
incurred or because he/she was operating a fixed fee arrangement.

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The Audit sought mediators’ views about any changes they may have seen in mediations
in recent years. We asked about both the popularity and the effectiveness of various
techniques which are commonly adopted. The table below shows average scores acrossthe range -2 for “significant decrease”, -1 for “slight decrease”, 0 for “no change”, +1 for“slight increase” and +2 for “significant increase”:

These results suggest that pre-mediation contact with both lawyers and parties isincreasingly popular but, perhaps surprisingly, mediators regard it as of diminishingeffectiveness. However, lawyers take a different view. There are also differences in views
about pre-mediation submissions in that lawyers are seeing, and apparently approve of, adecline in the practice of simply setting out the pleadings, but that is not what themediators perceive. Both groups do, however, report slight increases in the popularityand effectiveness of targeted meetings both at the opening and during the course of themediation.
As for other procedural trends or changes in the conduct of mediations which
respondents have identified in recent years, the most significant items, beyond the welldocumented emergence of online mediation, are that a number of mediators report
greater awareness and, as a result, more effective use of the process by lawyers. Lesspositively, a number report an increased tendency for mediation papers to be submitted
at a very late stage, thereby limiting the time available for preparation.

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Future growth areas
Mediators’ views as to which types of dispute or sector are likely to see the most growth inmediation usage over the next two years are largely unchanged from our previous audit.
The mainstream area of general civil and commercial disputes remains the mostfrequently mentioned sector, particularly in the light of the ongoing consultations aboutmandatory mediation, whilst Employment/Workplace, Professional Negligence andPersonal Injury were also prominent. Mediators also cited both the current economic
climate and social changes arising from the lockdown as likely to contribute to increased
mediation activity in the future.

Comments on the current mediation field
Our invitation for mediators to offer their thoughts on any additional matters not covered
elsewhere in the Audit attracted a broad range of comments, including:
The profession“It is an exciting time to be a mediator”“It is an extremely difficult field to get started in.”
“I would like to see mediation recognised as its own profession and not lumped inwith all other forms of ADR.”“It is disjointed and seen by many lawyers as a nice retirement gig and not as aserious profession for younger proponents. As with most things they touch, thelawyers are spoiling it through self-interest, if nothing changes mediation will go
the same way as adjudication - not delivering what was intended and something
many people would rather avoid.”“There are still far more mediators than mediations and some training bodies do
not properly explain this to participants on their courses, which leads todisillusionment.”
The future“…recently I think that CEDR, other such providers and the CMC have made amuch better fist of educating many in society as to the benefits of mediation.
Now the Government needs TO DO FAR MORE in that respect given that if there
is more ADR, ipso facto there should be less demand on HMCTS and thus the taxpayer.”“There is still an enormous education task that needs to be tackled, especiallywith litigation solicitors who continue to see mediation as just a form of
settlement process involving only negotiation and do not understand the ways inwhich it can bring about effective resolution of conflicts in a non-adversarial way
by exploiting interest-based solutions rather than rights-based solutions.”

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Readiness for mandatory mediation
Market capacity
The Government is currently considering the introduction of a requirement to attempt
mediation for all proceedings allocated to the small claims track of the County Court(generally, most types of claims valued under £10,000). Under this proposal, unless an
exemption is granted by the court, all parties to a defended small claim would be
required to attend a free mediation appointment with the HMCTS Small Claims Mediation
Service 3 before their case could progress to a hearing.
The Government’s immediate proposal would be addressed by an expansion in thecapacity of the SCMS. However, any broader expansion of mandatory mediation may wellcreate a wider need for mediators even if only by raising its profile. Hence, in order togauge the existing capacity of the mediator marketplace to handle additional work thatmight then become available, we asked mediators how many days per year (in total) theymight be available to mediate such higher value cases (i.e., case values over £10,000). We
specifically asked about availability in terms of days so as to avoid any complications
about whether the mediations would be full-day or time-limited matters.
As to be expected, our mediator respondents reported a wide variety of availability
figures, with a median response of 50 days and an arithmetical mean of 83 days.
Extrapolating this mean figure over the entire membership of the Civil Mediation Council(currently 649 mediators) would imply a market capacity of almost 54,000 days.

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Whilst parties in small claims are already referred to the HMCTS Small Claims Mediation Service, it is reported

that, whilst 55% of cases mediated via the SCMS result in a settlement, only 15-21% of parties utilise the service,with the evidence suggesting this is because many court users do not understand the mediation process and its
benefits (https://consult.justice.gov.uk/dispute-resolution/increasing-the-use-of-mediation)

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Income expectations
In order to provide a baseline for any upcoming discussions about mandatory mediation
and an expected increase in the number of cases if the remit was to extend into casevalues above £10,000, we asked mediators about their billing practices on typical lower
value cases.

These figures provide some insights on working and billing practices on individual
cases.However, because many mediators will work a portfolio of case values, this data
may not, when taken in isolation, present an accurate view of individuals’ broader
aspirations.
Accordingly, our Audit also asked about mediators’ overall income goals for undertaking
work on cases of over £10,000. These results showed a wide disparity, with quoted daily
income targets ranging from £100 per day right up to £5,000. The arithmetic mean target
was £1,826 per day but, as the table below demonstrates, this average has been skewed
upwards by a number of particularly high requirements that may well be unrealistic given
the nature of work involved:

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As for mediators’ flexibility in the event that their desired rates were not available, thesurvey results suggest that, for the majority, fee levels are not a major consideration; if
fees of only half of their target rate were offered, average availability would drop by only
2% and, similarly, if fees were doubled, mediators’ reported availability would rise by only
3%. These results are consistent with the general evidence that there is considerable
surplus capacity within the mediation marketplace and that, provided that they achieve asustainable income level, the majority of mediators are currently more concerned withgaining experience through taking on more cases than they are with increasing fee rates.
Building on this analysis, we also asked mediators whether they would be prepared towork to a fixed fee for cases valued at over £10,000. 83% of respondents said that theywould be prepared to do this, and their average quoted fee rate was £185 per hour.
As for other considerations that might influence mediators’ decisions to take on such
work, the two main issues identified by mediators were around reimbursement of travel
costs, in many cases leading them to prefer online cases, and concerns about theadministrative workload. These views were summarised by one mediator as being about:“Efficiency of the interaction with parties - i.e. if the admin side of organising themediation such as collecting the relevant papers from the parties, arranging thedate of mediation etc was handled by someone else then it is much more
attractive. The problem with lower value disputes (and therefore usuallyunrepresented parties) is that the admin and time involved in actually getting to
the mediation is disproportionate to the fees available.”

Issues around the participation of litigants in person in mediation
On the basis that any development of mandatory mediation is likely to trigger asignificant uplift in the numbers of Litigants in Person (LIPs) going through the process,our Audit sought views as to whether their involvement presented particular challenges
within the process.
Respondents identified a number of challenges in working with LIPs in mediation (thepercentages stated represent the average frequency upon which mediators reporthaving observing each issue in their practice).

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As the table above indicates, there were perceived shortcomings in LIPs’ understandingof their case and how to represent themselves effectively. These challenges were mostsignificant in the lower-case value band but tended to diminish as case values increased.
Perhaps as a consequence, in spite of the greater sums at stake, the reported ease of
settlement and duration of mediation in these higher value cases was virtuallyunchanged. Explanatory comments from our mediator respondents provide some further
insights and explanations of the above figures. Many make the point that there is nothingproblematic about LIPs per se, and that a well prepared and sensible LIP will generally bemore helpful towards achieving a workable settlement than a dogmatic lawyer. Therecan, however, be a need for more preparation work with LIPs so that they are fully
informed about the mediation process before going into it. It may also be that moreeducational materials need to be made available to LIPs to assist them in their
preparations for mediation.

Issues around enforcement of mediation settlements
One of the objections to mediation which has been occasionally raised by its opponents isthat, unlike a court order or arbitration award, a mediation settlement agreement ispotentially unenforceable in the event that one party choses to renege on a commitment.
The traditional solution to this concern in the United Kingdom where litigation
proceedings have commenced has been to arrange for a settlement agreement to begiven the force of a court order by using a Tomlin or Consent Order.

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Within the international arena, there is now the Singapore Convention on Mediation
which addresses the enforcement issue at least in those jurisdictions which have ratified
the Convention. The United Kingdom has yet to do so although an informal consultationby the Ministry of Justice in September 2019 received responses that were broadly
favourable, with stakeholder feedback indicating that joining the Convention would raise
the profile of mediation internationally and maintain the UK as an attractive dispute
resolution hub.
In the light of possible growth in domestic mediation that might arise from the movetowards mandatory mediation, our Audit surveyed mediators’ experiences as to thefrequency and nature of issues around the enforceability of mediation settlements. Thisrevealed that the majority of mediators had either never or only rarely encountered such
issues.

As to the nature of the issues that were encountered, these were generally either because
one party had changed their mind about agreeing to a settlement or because there wassome uncertainty about the nature of the agreement that had been reached or themechanisms for its implementation. There was also a few matters where a party
apparently did not have sufficient funds to pay an agreed settlement and others where an
attempt was made to re-open a negotiation on the grounds that circumstances hadchanged, or new information had come to light.
Our separate survey of lawyers reported similar results, with over 60% never having
encountered issues around enforcement of settlement agreements, and the remainder
having done so only occasionally. A typical scenario cited was “Defendant found raisingfunds more difficult than expected and there was a potentially missed deadline,” asituation that could have arisen regardless of the settlement method employed.

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We asked mediators who had encountered such issues whether, with the benefit ofhindsight, anything could have been done either before or during the mediation thatmight have avoided such issues. Most responses placed the responsibility clearly on the
mediator to ensure that parties fully understood what they were agreeing to - as one
respondent said:“Testing workability is a key role for mediators in the concluding phase of the day.
Ensuring that the process builds in enough time for reflection is key - a good deal
today will still be a good deal tomorrow. The mediator is in charge of making surethat the process is safe, and this includes ensuring that those drafting are given
enough space and time to get it right.”
In summary, therefore, the general view of our Audit respondents was that the risk ofthere being issues around enforcement of mediated settlement agreements isoverstated.

Market regulation
Our Audit invited mediators’ views as to the need for and nature of any regulation of themediation marketplace. This revealed overwhelming support in favour of regulation, with
the Civil Mediation Council as the preferred body.
Overall, 88% of mediator respondents agreed that the field should be regulated, with only
12% stating that there should be no supervisory body. This latter group generally argued
that the marketplace would soon weed out any sub-standard mediators, so regulation
was unnecessary, and that consequential institutionalisation may even be harmful.
It is interesting to note that support amongst mediators for regulation of the field has
been consistently high – for example, our 2003 Audit reported 76% support for the
proposition that there should be a single regulatory body for setting and monitoring
professional standards of practice by commercial mediators and dealing with public
complaints against mediators.
As to which body should undertake the regulatory function, 82% of those in favour of suchan approach believed that the role should be fulfilled by the Civil Mediation Council, whilst
11% favoured a new body and 7% supported other existing organisations (but with nosingle organisation achieving more than 1% support). Reasons for supporting the CMC
generally referred to its established standing and reputation, and the fact that it was nonprofit and not itself a training or mediation service provider.
Similar views were expressed in our parallel survey of lawyers, with 76% in favour ofregulation, and 75% of such respondents supporting the CMC.
However, one surprising point in relation to the CMC was that, when we asked mediators
which organisation had accredited them, some 34% of mediator named the CMC. Thisshows some misunderstanding of the CMC’s role in that it does not actually offer ab initio
accreditation of mediators, but instead operates a system of recognising Registered
Providers who offer suitable training and accreditation. It may be that the CMC needs toclarify its role in this regard – the combined concepts of accreditation and registration
may be causing some confusion here.

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Contribution of the field
Finally, by combining the results of the Mediator Audit surveys with detailed operational
statistics taken from CEDR’s own caseload, we can update our assessment as to theoverall economic impact of the commercial mediation field as a whole:oThe total value of cases mediated (i.e. the amount at issue) can be significantly
influenced by the impact of mega-cases. If, however, the effect of such cases is
excluded, the value of cases mediated each year is approximately £20 billion.

oSince 1990, effectively the launch point of civil and commercial mediation within
England & Wales, the total value of mediated cases is approaching £195 billion.

o

By achieving earlier resolution of cases that would otherwise have proceeded
through litigation, the commercial mediation profession this year will savebusiness around £5.9 billion in wasted management time, damaged relationships,
lost productivity and legal fees.

o

Since 1990, our profession has contributed savings of £50 billion.

By way of a comparator to these figures, our Audit results suggest that the aggregate
value of the mediation profession in terms of total fee income is around £65 million.

Conclusion
We may never know whether former First Lady, Michelle Obama, a former attorney andgraduate of Harvard Law School, could have taken a different career path and become asuccessful commercial mediator, but perhaps the description of her journey in Becomingmight equally be applied to our mediation profession:“Becoming isn’t about arriving somewhere or achieving a certain aim. I see it
instead as forward motion, a means of evolving, a way to reach continuously
toward a better self. The journey doesn’t end.”
For that is where our Audit shows us to be. Yes, mediation has arrived at its desired
destination within the mainstream of the litigation system, but its race is far from run. 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?
But simply delivering more cases is not, of itself, enough unless we can also maintain thehigh standards that have been set so far. As this Audit demonstrates, settlement rates
remain high, and the process is cost-effective. However, a lack of diversity amongst
mediators is still a concern, and perhaps there is still a need to take the mediation skillset
beyond the litigation context. Our historic growth to a total of around 17,000 mediations a17

year is certainly an impressive achievement, but with some 247,000 contested Civil law
cases in England and Wales each year 4, the need (and opportunity) is still vast.
So, with new approaches, and new areas for implementation of mediation, we are still
evolving, but the journey has not ended.

Graham Massie
CEDR Director
1 February 2023

The Mediation Audit is a biennial initiative undertaken by CEDR as part of its
public mission to cut the cost of conflict and create a world of choice andcapability in conflict prevention and resolution.
CEDR is grateful for the support of its members.
For further details, see our website: www.cedr.com

4

1.3 Million claims were brought in 2020, but only 19% of claims are defended (and therefore necessitate a court

hearing).This figure does not include family law cases, employment tribunal cases or criminal cases.

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