The Eighth Mediation Audit

Transcription

1 CENTRE fr EFFECTIVE DISPUTE RESOLUTION w w w. c ed r.c m The Eighth Mediatin Audit A survey f cmmercial mediatr attitudes and experience in the United Kingdm 10 July Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) inf@cedr.cm Centre fr Effective Dispute Reslutin Registered in England n Registered Charity n

2 Intrductin This marks the eighth ccasin n which CEDR (The Centre fr Effective Dispute Reslutin) has undertaken a survey f the attitudes f civil and cmmercial mediatrs n a range f issues cncerning their persnal backgrund, mediatin practice and experience, prfessinal standards and regulatin, and pririties fr the field ver the cming years. The primary fcus f the survey is t assess hw the market and mediatin attitudes have changed ver the past tw years. The survey was undertaken using an internet-based questinnaire, which was pen t all mediatrs in the United Kingdm, regardless f rganisatinal affiliatin. It was publicised by way f CEDR s website and direct t the mediatr cntacts bth f CEDR and f ther leading service prviders and members f the Civil Mediatin Cuncil. In a new develpment this year, the survey als sught ut the views f mediatrs based in ther jurisdictins, particularly the United States where the survey was publicised thrugh CEDR s cllabratin with The Internatinal Institute fr Cnflict Preventin and Reslutin (CPR). This particular reprt is based upn the 336 respnses that were received frm mediatrs based in the United Kingdm. This is a statistically significant sample that represents ver 50% f the individual membership f the Civil Mediatin Cuncil. As in any survey, nt all participants answered every questin. A separate reprt will be develped frm the respnses received frm mediatrs based in the United States. Alngside ur survey f mediatr attitudes, we cnducted a parallel survey f lawyer attitudes in rder t prvide a client-riented perspective t sme f the questins raised. We plan t release these findings separately, but where relevant, we have crss-cmpared the respnses frm the lawyers survey with that f the mediatrs survey. It is imprtant t emphasise that this is a survey f the civil and cmmercial mediatin landscape, a field we have very lsely defined as encmpassing any and all mediatin activity that might reasnably fall within the ambit f the Civil Mediatin Cuncil. This reflects the backgrund f the surveying rganisatin, CEDR, and the channels thrugh which survey respnses were canvassed. We d nt, therefre, claim t cver either cmmunity r family mediatin (althugh sme f ur respndents d reprt als being active in thse fields). Furthermre, we d nt include the statutry ACAS service r the HMCS Small Claims Mediatin Service, quite simply because the scale f their activities wuld each far utweigh the ther findings f this survey. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

3 The mediatin marketplace On the basis f mediatrs reprted caselads, we estimate that the current size f the civil and cmmercial mediatin market in England & Wales is nw in the rder f 12,000 cases per annum. This is 20% mre than the 10,000 cases we estimated in 2016, suggesting that there has been an acceleratin f grwth after what had seemed t be a slwing dwn tw years ag. 14,000 12,000 10,000 8,000 6,000 Schemes Service Prviders Direct Referrals 4,000 2, This cnclusin may nt, hwever, reflect the experience f many mediatrs r mediatin service prviders. This is because it appears that the shape f the market is underging further change: Whereas histrically it has been ad hc referrals f individual cases which has marked the expansin f mediatin activity, this grwth has tailed ff such that this wrk is nly up by 9% since 2016, the slwest rate f increase that this survey has ever seen. Furthermre, the shape f this sectr f the market seems t have stabilised. Whereas ne f the key variables ver the past 15 years has been the shifting balance f ad hc mediatins between direct referrals and thse ging thrugh service prviders, ur latest survey shws that 70% f ad hc cases are being handled n a direct referral basis, unchanged frm 2016 (as cmpared t 66% in 2014; 71% in 2012, 65% in 2010, 60% in 2007, 55% in 2005 and 45% in 2003). Offsetting this steadying f the ad hc market, ur survey reveals remarkable grwth in scheme-related activity, that is rganised mediatin schemes such as thse supprted by NHS Reslutin, by leading emplyers and by the Curt f Appeal and ther curts. This area f activity has grwn by 45% in just the past tw years, and nw accunts fr sme 4,500 cases, r 37.5% f all mediatin activity. Finally, the market remains dminated by a select few, with a grup f arund 200 individuals invlved in arund 85% f all nn-scheme cmmercial cases (i.e. an average f cases each). The size f this grup has, hwever, grwn markedly frm the 145 reprted in 2016, suggesting that mre cmpetitin is finally develping. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

4 The mediatrs In terms f persnal mediatin experience, respndents were split between three brad categries: 62% Advanced mediatrs wh described themselves as reasnably r very experienced; 19% Intermediates wh categrised their lead mediatr experience as sme r limited ; and 19% Nvices wh were generally accredited but had n experience as a lead mediatr. This verall prfile is slightly different t that bserved in previus Audits as an increasing prprtin f mediatrs are identifying themselves in the Advanced categry (up t 62% frm 54% in 2016). The vast majrity f Nvice and Intermediate mediatrs reprted persnal invlvement in n mre than fur mediatins a year. Advanced mediatrs reprted mre extensive practices and we can n lnger claim that cmmercial mediatin remains a part-time prfessin as, fr the first time, we saw 60% f Advanced mediatrs characterising themselves as full-time mediatrs, a significant increase n the 40% identified in 2016 (2014: 47%; 2012: 39%; 2010: 37%). Clearly, hwever, full-time is a term f art, as 59% (2016: 56%; 2014: 46%) still reprt undertaking less than 10 mediatins a year. The age f the average female mediatr is 51 (2016: 50), whilst the average male mediatr is cnsiderably lder, at 59 (2016: 57). The Advanced mediatr grup are nly a year r s lder than the average. In previus audits, we have seen signs f increased female invlvement in the field. Hwever, this prgress may have stalled again as we see just 35% f respndents were wmen (2016: 35%; 2014: 26%; 2012: 22%; 2010: 19%). Furthermre, wmen remain under-represented in the Advanced grup at 24%, dwn frm 29% in 2016 (2014: 25%; 2012: 18%). In cntrast, the latest statistics frm the Law Sciety, perhaps the nearest cmparable prfessin, reprt that 50.1% f practising certificate hlders are wmen. Other aspects f diversity remain a cncern, with just 10% f respndents categrising themselves as being frm Black, Asian and minrity ethnic (BAME) grups (cmpared t 16.5% f slicitrs). Furthermre, statistics frm the Disabled Living Fundatin describe disabled peple as representing abut 19% f the wrking ppulatin in the UK, s ur survey respnse f just 5% mediatrs reprting a disability seems disprprtinately lw. Hwever, ur result f arund 2% identifying themselves as lesbian, gay r bisexual is cnsistent with estimates frm the Office fr Natinal Statistics. Less than half (49%) f ur respndents were legally qualified (2016: 43%; 2014: 52%; 2012: 62%), but the prprtin f lawyers within the Advanced grup remains higher, at 61% (2016: 57%: 2014: 60%; 2012: 70%). Bth f these latest figures mark a slight reversal f the trend away frm lawyer mediatrs that were identified in previus Audits. Fr the first time, ur survey asked lawyers whether they were satisfied with the current levels f diversity in the pl f available mediatrs. This revealed a wide range f views: 35% said they were satisfied, 26% were nt satisfied and a surprising 39% reprted that they had nt cnsidered the issue. One respndent signalled a pssible way frward: Mst full-time mediatrs with substantial caselads in my line f wrk are male and almst all are white. This can alienate clients in sme situatins. Mentring might help. Experienced mediatrs bringing junirs frm mre diverse backgrunds t bserve might als help as it wuld give slicitrs a wider expsure t thse junirs. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

5 Surces f wrk We asked bth mediatrs and lawyers t assess the relative significance f a number f factrs in determining why individuals secured cmmercial mediatin appintments and then cmpared the aggregate rankings as set ut in the table belw: Mediatrs Lawyers Prfessinal reputatin experience/status Availability Fee levels Prfessinal backgrund/qualificatins Sectr experience Recmmendatin by lawyer in previus case Prfessinal reputatin mediatin style Recmmendatin by prvider Lcatin Repeat business with lawyer Recmmendatin by client in previus case Marketing activity (e.g. mailshts, website) Repeat business with client PR activity (e.g. articles, speeches) Prfessinal reputatin settlement rate Recmmendatin by directries Recmmendatin by ther mediatrs Within this ranking, prfessinal reputatin experience/status has lng been the clear winner with bth mediatrs and lawyers, but it is interesting that availability has returned as a significant factr after its dip in Fee levels are als rising in significance, at least in the eyes f mediatrs. We als asked mediatrs hw ften they emphasised their prfessin when prmting themselves; hw ften was it a significant factr in their securing appintments; and, finally, hw ften did it turn ut t be actually relevant and needed in the subsequent mediatin, including assisting in reaching settlement. As the table belw indicates, there are still marked differences in the respective prprtins f lawyer and nn-lawyer mediatrs reprting these situatins as ccurring almst always r frequently : Lawyer Mediatrs Nn-Lawyer Mediatrs % 49% 56% Used in self-prmtin 62% 58% 64% 65% 65% 67% Influential in getting wrk 57% 55% 55% 62% 67% 64% Relevant in practice 55% 50% 43% 63% 62% 59% Factr in getting settlement 53% 51% 47% The gap between the extent t which lawyer and nn-lawyer mediatrs market their prfessinal backgrund is decreasing, but it is still the nn-lawyer mediatrs wh are wrking harder t prmte their prfessinal backgrund, albeit this des nt seem t be wrking fr them as well as it des fr the lawyers. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

6 In the meantime, the debate abut the respective merits f different backgrunds cntinues withut any sign f likely reslutin. There are, hwever, an increasing number f pragmatists wh recgnise that legal advisers play a large part in influencing mediatr appintment decisins and that, as ne respndent put it: since lawyers are usually mre cmfrtable dealing with fellw lawyers, there is an ingrained tendency fr lawyers t chse lawyers ver nnlawyers. I think they think that nn-lawyers d nt have the necessary legal knwledge t assist in reaching settlement. It tends t be nly where cmplicated numbers r technical issues are invlved that they will lk beynd this t ther prfessins. Many lawyer mediatrs feel this attitude plays int their hands, but cnversely, it clearly prvides a spur fr nn-lawyer mediatrs t take greater steps t prmte their particular expertise and t differentiate themselves frm the crwd. Perfrmance in mediatin The verall success rate f mediatin remains very high, with an aggregate settlement rate f 89% (2016: 86%). The prprtin f cases that achieve settlement n the day f mediatin has risen back t 74% after the previus audit s drp t 67%, and cnversely, there has been a decrease in the prprtin f cases that settle shrtly after mediatin, falling frm 19% t 15%. Settlement rates amngst the Advanced mediatr grup are similar. These settlement rates reprted by mediatrs were validated by the findings f ur separate survey f lawyers views, which revealed a very similar pattern. Hwever, it is interesting t nte that individual mediatrs reprted settlement rates remain a relatively insignificant factr in determining appintments. This wuld seem t cnfirm the accunts f many mediatrs and lawyers that the value f the prcess ges far beynd the binary questin f whether r nt settlement is achieved, and that many less tangible impacts, such as clarifying the issues and narrwing areas f difference, are als f real imprtance. We asked mediatrs t prvide a breakdwn f the number f hurs they spent n a typical mediatin. This revealed that the average time spent has fallen by abut 2 hurs, back t the level reprted in the 2014 Audit. This may well reflect the increased prprtin f scheme cases, which are mre likely t perate under a fixed budget. A significant prprtin f mediatr time cntinues t be unremunerated an average f 3-4 hurs was unpaid, either because the mediatr did nt charge fr all f the hurs incurred r because he/she was perating a fixed fee arrangement Preparatin Reading briefing materials Client cntact Mediatin Wrking with clients n the day Pst-mediatin Fllw-up / n-ging invlvement Ttal Althugh mst mediatrs are still wrking with this standard structure, there are sme signs frm mre established mediatrs that the traditinal ne-day mdel f mediatin is nw being supplemented by mre flexible sessinal mdels f engagement in mre cmplex cases as well as in deal-making as ppsed t dispute reslutin cntexts. Similarly, ur survey has received increased accunts f hw mediatrs are making use f their prfessinal skill set in ther aspects f their persnal and prfessinal lives. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

7 We asked mediatrs fr their views n the perfrmance thse lawyers and clients they encuntered in their mediatins: 63% f lawyers (2016; 69%; 2014: 71%; 2012: 64%) and 61% (2016: 64%; 2014: 62%; 2012: 59%) clients were rated as having perfrmed very well r quite well 23% (2016: 19%; 2014: 15%; 2012: 21%) f lawyers and 24% (2016: 21%; 2014: 23%; 2012: 24%) f clients were rated as having perfrmed adequately 14% (2016: 12%; 2014: 14%; 2012: 15%) f lawyers and 15% (2016: 15%; 2014: 15%; 2012: 17%) f clients were rated as perfrming less than adequately (with 5% f lawyers and clients rated as having been very pr). These findings are bradly cnsistent with the findings f ur separate survey f lawyer perceptins. Lawyers rated 70% (2016: 60%; 2014: 54%; 2012: 52%) f their cunterparts, and 72% (2016: 70%; 2014: 70%; 2012: 56%) f clients, as having perfrmed well r very well in mediatin, with 14% (2016: 13%; 2014: 20%; 2012: 17%) f lawyers and 10% (2014: 4%; 2014: 15%; 2012: 15%) f clients perfrming prly. Thus, bth surveys cnfirm that the majrity f lawyers are familiar with the prcess and getting better at wrking within it, but there still there remains a rump f arund 15% wh are lagging behind. Turning the tables, ur separate survey f lawyers als asked fr their ratings f mediatr perfrmance: 83% (2016: 81%; 2014: 82%; 2012: 69%) f mediatrs were reprted as perfrming very well r quite well, with 53% (2016: 60%; 2014: 53%; 2012: 48%) in the highest categry. 13% (2016: 14%; 2014: 12%; 2012: 22%) were reprted as perfrming adequately. 4% (2016: 5%; 2014: 6%; 2012: 9%) perfrmed less than adequately, f which 1% (2016: 1%; 2014: 2%; 2012: 4%) were rated as being very pr. In rder t try t btain further insights int the challenges that mediatrs encunter when wrking with parties and their advisers, we asked abut the frequency with which they encuntered particular behaviurs within client negtiatin teams: Frequently r almst always Pr negtiatin strategy 43% 39% Over-reliance n advisers 42% 48% Grupthink 36% 41% Avidance 26% 24% Inter-persnal cnflict within team 21% 14% Disagreement abut strategy 16% 7% As fr mre psitive behaviurs, mediatrs reprted encuntering effective leadership f client negtiatin teams n 34% f ccasins (2016: 40%), and gd negtiatin strategies n just 23% (2016: 24%). Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

8 We als asked mediatrs t describe the piece f advice that they mst frequently wished t give t parties (r actually gave them) abut hw t imprve their wn perfrmance in the mediatin prcess and get the best ut f it. Nearly all f the 150 separate respnses t this questin wuld be familiar t any recent participant in a high-quality mediatr skills training curse, s their value is nt s much t highlight differences f apprach as between individuals but, rather, t highlight thse areas where mediatrs have felt a need t give advice. The fllwing capture thughts expressed by many: Prepare fr the day - nt nly by thinking abut yur needs and expectatins but als ding the same thing thinking abut yur ppnents. Read Getting Past N. Arrive early. Check the parking. Being in the right des nt bring anybdy clser t a mutually beneficial psitin Reflect n the ffer yu are making t the ther party if this ffer was put t yu hw wuld yu feel? Is the ffer realistic? D mre preparatin! cme t the mediatin with a prperly executed risk assessment and a realistic range f acceptable utcmes, based n needs rather than just regurgitating a psitin that has already been stated in crrespndence, pleadings and the psitin statement (which is frequently itself a rehash f the pleadings). I always want t tell very senir lawyers t try t take their wn emtin ut f the prcess - it isn't abut them, it's abut their client! Finally, we asked mediatrs abut the apprach that they adpted within mediatin as there has been a lng-running discussin in the field abut the respective merits f facilitative and evaluative appraches. Firstly, we asked mediatrs abut their persnal philsphy fr mediatin. As might be expected given the nature f mst mediatr skills training, respndents shwed a marked preference twards the lwer end f the spectrum (n the basis that a scre f 0 means fully facilitative, 10 means fully evaluative and 5 is 50/50). Persnal philsphy f mediatin Hwever, this did nt always match with where mediatrs believe that parties and their advisers expect them t be (based n what is said during mediatins) clearly, they are lking fr a mre evaluative apprach. Parties expectatins Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

9 We then asked mediatrs fr mre details abut the appraches they adpted at different stages f the mediatin prcess. First phase f mediatin when yu are uncvering infrmatin Trying t get negtiatins mving When everything is stuck Clsing the deal 10 Arguably this srt f pattern is what ne might expect mediatrs trained in a facilitative dctrine tend t favur that apprach and start ut using it, but many (althugh clearly nt all) veer twards mre evaluative strategies when the ging gets tugh. Further analysis n this tpic will be prvided in a subsequent reprt. Particular questins still t be addressed include (a) des a mediatr s preferred apprach vary accrding t their level f experience; (b) is there any crrelatin between mediatr apprach and settlement rates; and (c) are lawyer mediatrs mre, r less, evaluative than nnlawyer mediatrs. These questins, alng with feedback n respndents views abut mediatin techniques which did r did nt wrk, will be published in a separate reprt dealing specifically with prfessinal skills issues. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

10 Changes and trends We asked mediatrs what prcedural trends r ther changes they have nticed in the cnduct f mediatins in the past tw years. As might be expected, this questin attracted a wide range f cmments, but what was particularly nticeable was that 25% f all f thse cmments referred t an increasing resistance t jint meetings, particularly at the start f a mediatin day. This resistance appears t be largely driven by lawyers wh argue that n purpse is served by such meetings given that the parties are already familiar with each ther s cases a view which the majrity f mediatrs d nt appear t accept. The next mst frequently mentined change, at 10%, was that negtiatins are becming tugher. Sme saw this as being attributable t the fact that the simpler cases are settling befre getting t mediatin, but thers pint t increasing late dcument bundles which then turn ut t cntain n mre than pr frma psitin papers. Mre psitively, a number f mediatrs reprt mre skilful engagement in the mediatin prcess by lawyers (and barristers in particular), althugh clearly sme d nt view this develpment as helpful and refer t their being tld by slicitrs hw t run the mediatin. Finally, a number f mediatrs reprt seeing an increase in jint meetings between lawyers and/r clients during the curse f the mediatin (as ppsed t at the start f the day). Lawyers cmments n what changes they had seen largely mirrred thse f mediatrs in that they t nted, and welcmed, mediatins becming mre streamlined, and n the negative side they als nted a decline in the standards f mediatin bundles. Grwth areas Mediatrs views as t which types f dispute r sectr are likely t see the mst grwth in mediatin usage ver the next tw years are largely unchanged frm ur previus audit. The mainstream area f general cmmercial disputes remains the mst frequently mentined sectr, whilst Emplyment/Wrkplace, Prfessinal Negligence and Persnal Injury were als prminent. The mst ntable new entrant near the tp f the list was Prbate. Standards and regulatin In respnse t ur request fr mediatrs views n what shuld be the main pririties f the Civil Mediatin Cuncil fr the next tw years, the number f critical cmments abut the CMC was far lwer than we saw in ur 2016 Audit. The ne issue that did attract criticism frm a few was abut what they saw as steps t get clser t, and pssibly even merge with, the Family Mediatin Cuncil. That is nt t say that respndents were critical f the FMC, r averse t cllabratin, and in fact, a number suggested that the CMC culd learn lessns frm sme f FMC s successes. There was, hwever, an underlying cncern that the CMC still had a lt t d within its riginal missin. As t what that missin shuld be, a clear cnsensus has emerged arund the ntin f the CMC as a prfessinal bdy whse primary rle is wrk with gvernments, clients and advisers t increase the take-up f mediatin. There are differing emphases as t which audience shuld be the primary target f prmtinal wrk, but the majrity f all suggestins abut CMC pririties fell int this categry. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

11 A small prprtin (7%) f mediatrs pririties fr the CMC made reference t regulatin f mediatin practice, but a larger grup (18%) simply referred t a need t set higher standards in areas such as accreditatin and cntinuing prfessinal develpment. Sme justified this by referring t CPD requirements f nly six hurs r permitting mediatin bservatins t be treated as actual practical experience, as setting the bar t lw, whilst a small number f individuals tk the pprtunity t make clurful criticisms f thers. Lawyers views n the pririties fr the CMC largely mirrred thse f mediatrs in that they still see a significant need fr further prmtin f the benefits f mediatin. Interestingly, nly ne lawyer respndent made reference t any need t imprve standards r regulate the mediatin prfessin. Mediatr earnings The changing shape f the marketplace is als having an impact n fees: 5,000 4,500 4,000 3,500 3,000 2,500 2,000 1,500 1, Junir mediatrs Experienced mediatrs Average fees f the less experienced mediatr grup fr a ne-day mediatin have drpped by 2.1% ver the past tw years t 1,512 (2016: 1,545; 2014: 1,422; 2012: 1,517; 2010: 1,390). Average fees fr mre experienced mediatrs have seen a mre significant 19.4% drp t 3,627 (2016: 4,500; 2014: 3,820; 2012: 4,279; 2010: 3,450). As usual, the averages cnceal a wide variatin in individual rates. Hwever, these drps in average fees are cnsistent with ur findings f verall mediatin activity. Nt nly are schemes less remunerative than ad hc referrals, but as membership f the Advanced grup increases, the less experienced members tend t reduce the average as they cannt yet achieve the higher fees f mre established practitiners (fr whm there are n signs f any reductins). By cmbining fee rates with reprted activity levels, we can prject average incmes fr differing levels f mediatr activity: Thse undertaking between 20 and 30 mediatins a year are earning between 22,000 and 106,000 with an average f 68,000 (2016: 55,000; 2014: 70,000; 2012: 90,000; 2010: 73,000). Thse mediatrs undertaking between 30 and 50 mediatins a year are earning between 65,000 and 400,000, with an average f 175,000 (2016; 175,000; 2014: 128,000; 2012: 145,000; 2010: 126,000). Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

12 Thse undertaking ver 50 cases a year are earning are earning between 130,000 and 780,000, with an average f 330,000 pa (2016: 400,000; 2014: 370,000; 2012: 414,000; 2010: 296,000). Average earnings fr a ne-day mediatin: Pr bn nly 3.1% 10.4% 8.1% 7.4% 10.3% 9.1% Under % 6.3% 4.0% 5.3% 5.8% 8.5% 501-1, % 17.4% 22.1% 24.0% 22.4% 29.1% 1,251-2, % 17.4% 16.8% 18.1% 19.2% 17.0% 2,001-2, % 8.3% 14.8% 14.6% 10.9% 10.3% 2,501-3, % 9.7% 12.1% 8.2% 7.7% 9.7% 3,001-3, % 8.3% 7.3% 4.7% 9.0% 6.7% 3,501-4, % 4.9% 3.4% 4.1% 4.5% 2.4% 4,001-4, % 3.5% 2.0% 1.2% 1.3% 1.2% 4,501-5, % 2.1% 2.0% 4.1% 5.1% 3.0% 5,501-6, % 4.2% 3.4% 3.5% 2.6% 1.2% 6,001-6, % 2.0% 0.6% - 1.8% 6,501-7, % - 0.7% 1.8% - - 7,001-7, % 1.4% % - 7,501-8, % 0.7% - 0.6% 0.6% - 8, % 4.2% 1.3% 1.8% - - The mst successful mediatr we surveyed reprted average earnings f ver 9,500 per case n a wrklad f arund 80 cases, giving an annual incme f sme 780,000. Cntributin f the field Finally, by cmbining the results f the Mediatr Audit surveys with detailed peratinal statistics taken frm CEDR s wn caselad, we can update ur assessment as t the verall ecnmic impact f the cmmercial mediatin field as a whle: The ttal value f cases mediated (i.e. the amunt at issue) can be significantly influenced by the impact f mega-cases. If, hwever, the effect f such cases is excluded, the value f cases mediated each year is apprximately 11.5 billin (2016: 10.5 billin). Since 1990, effectively the launch pint f civil and cmmercial mediatin with England & Wales, the ttal value f mediated cases is appraching 110 billin. By achieving earlier reslutin f cases that wuld therwise have prceeded thrugh litigatin, the cmmercial mediatin prfessin this year will save business arund 3 billin a year in wasted management time, damaged relatinships, lst prductivity and legal fees. Since 1990, ur prfessin has cntributed savings f 28.5 billin. By way f a cmparatr t these figures, ur Audit results suggest that the aggregate value f the mediatin prfessin in terms f ttal fee incme is arund 30 millin. Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

13 Cnclusin Althugh the CEDR Mediatin Audit fcuses largely n the attitudes and experiences f cmmercial mediatrs in the United Kingdm, perhaps the mst cmpelling summary f the state f the prfessin cmes frm ur parallel survey f lawyers views. We asked them t tell us abut thse client matters n which they have wrked in the past year and which are nw cncluded: Settled by negtiatin - pre issue 24% Settled by negtiatin - pst issue (pre directins) 7% Settled by negtiatin - pst issue (pst directins) 12% Settled by mediatin 45% Settled by arbitratin 4% Settled by ther ADR prcess 4% Settled at trial 4% That such a small prprtin f cases g all the way t trial is well knwn, but the fact that 45% f all cases nw achieve settlement by way f mediatin shws hw far the field has cme in terms f disrupting the ancien regime f attritinal cnflict. Since its intrductin int the UK litigatin marketplace in the late 90s, cmmercial mediatin has prgressed frm being a self-cnfessed alternative frm Califrnia t becme an established feature in the cnflict landscape, with its use increasingly mandated by cmmercial cntracts, crprate plicy and prcedural rules. Alngside this, an entirely new prfessin has emerged a prfessin which is nw well established, albeit ne that still faces the tensins f activity largely being in the hands f a small grup whilst s many mre are still stuck in the Catch 22 that specifies that appintments nly cme after experience, but experience nly cmes frm appintments. This issue still needs t be reslved, ideally by grwing the demand fr mediatin services, an activity which ur respndents still regard as the main pririty fr the Civil Mediatin Cuncil. In additin, there is a rle fr ur service prviders in breaking dwn the barriers. The lack f diversity in ur prfessin remains a cncern, and this ges far beynd race and creed. Our field will nly cntinue t thrive if we can ffer the market new talent rather than just the same ld faces, but that talent must be f high quality and a number f ur respndents suggest that the bar fr entry needs t be set higher. One definitin f Disruptive Innvatin is: An innvatin that creates a new market and value netwrk and eventually disrupts an existing market and value netwrk, displacing established market-leading firms, prducts, and alliances. As the results f this Audit demnstrate, mediatin qualifies under virtually every aspect f the definitin the nly pint it hasn t hit is displacing established market-leading firms but that is because it has ver-achieved by changing law firms and lawyers behaviurs and attitudes. The vast majrity have espused the mediatin apprach as part f their prfessinal skill set, and nt nly d a high prprtin f lawyers perfrm very well in mediatins, but many have becme very successful mediatrs in their wn right. Nevertheless, the debate abut the respective merits f lawyer and nn-lawyer mediatrs will cntinue, as will many ther healthy discussins abut prfessinal skills, appraches and areas f applicatin. Fr whilst we may have successfully disrupted the traditinal adversarial litigatin culture, ur wn field is nt immune t disruptin and further evlutin is assured. Graham Massie CEDR Directr 10 July 2018 Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n

14 The Mediatin Audit is a biennial initiative undertaken by CEDR as part f its public missin t cut the cst f cnflict and create a wrld f chice and capability in cnflict preventin and reslutin. CEDR is grateful fr the supprt f its members. Fr further details, see ur website: Centre fr Effective Dispute Reslutin Internatinal Dispute Reslutin Centre 70 Fleet Street Lndn EC4Y 1EU Registered charity n: Centre fr Effective Dispute Reslutin, 2018 Centre fr Effective Dispute Reslutin 70 Fleet Street, Lndn EC4Y 1EU Tel: +44 (0) Fax: +44 (0) Fr general infrmatin: inf@cedr.cm Fr ADR enquiries: adr@cedr.cm Registered in England n Registered Charity n