Mediators forecast surge in mediation usage in public sector

Disputes involving the public sector will – alongside employment and personal injury cases – see the most growth in mediation usage over the next two years, mediators have predicted.

Some 6,000 mainstream commercial and civil cases were also mediated in the last year, according to CEDR’s Fourth Mediation Audit. The research did not cover workplace mediations or Ministry of Justice small claims mediations.

Other findings from the 2010 audit, which surveyed 221 mediators, include:

• The value of cases at stake was estimated at £5.1bn, up £1bn on the mediation provider’s 2007 audit
• Around 75% of cases settled on the day of the mediation, with a further 14% settling shortly after
• The most important contributors to settlement of cases in mediation were preparation (by clients, mediators and lawyers, in that order) ahead of the impact of negotiation skills and specific mediator techniques
• Intransigent parties, unrealistic expectations and clients on fishing expeditions were blamed for the non-settlement of cases
• Conditional Fee Agreements are expected to have a significant effect on the level of future mediation settlements
• Lawyers who appoint mediators say the key factors in selection are their experience and fee, while mediations believe it is their experience and qualifications, and
• The mediation market is dominated by 90 individuals who are involved in around 85% of all non-scheme commercial cases.

Three quarters of the mediators surveyed (72%) also called on the civil justice system to take a more directive approach towards the promotion of mediation, although only 3% supported a fully mandatory system. By contrast, half of lawyers said they were content with the status quo.

Graham Massie, CEDR’s director of consultancy, said: “Significant progress has been made in the recent years since our last audit. The commercial market is still growing steadily and there are encouraging signs of new areas of application, most notably in the workplace and employment fields.

“Commercial mediation may not, therefore, yet be a mature profession, but it is coming of age and has an encouraging future – even if growing pains remain.”

A previous survey – carried out in November 2009 by law firm Nabarro, barristers’ chambers 39 Essex Street and the ADR Group – claimed that local authorities were failing to use mediation in judicial reviews despite its potential to deliver substantial cost savings.

Its research found that 97% of councils do not refer judicial reviews to mediation before court proceedings.

This was despite the fact that 86% acknowledged mediation as a viable alternative to court proceedings and more than half (56%) said that mediation was their preferred method of dispute resolution.