The Centre for Effective Dispute Resolution’s 10th biennial audit, in conjunction with the Civil Mediation Council, makes for some interesting and positive reading for developments in the commercial mediation space since the last audit in 2020. The audit provides a useful survey of the attitudes and experiences of 328 commercial mediators in the UK over the last two years.
The headline figures for the success of mediation remain healthy. The total settlement rate is 92%, with 72% settling on the day of the mediation, and the remaining 20% settling shortly thereafter. These figures are confirmed by the findings of the separate survey of lawyers’ views.
One of the most striking indications of the effectiveness of mediation for resolving disputes is that COVID-19 did not, unlike for many services activities, lead to a significant downturn. Mediation in fact modestly grew, despite the COVID-19 induced slump. Mediation use now stands 3% higher than before the COVID-19 pandemic, highlighting its resilience and continuing relevance.
Of the 17,000 cases reported, 64% were conducted online, down from the 89% high registered during the COVID-19 pandemic. The online format, even if the mediation day was done in person, is
also being used more for pre-mediation preparation and post-mediation follow up, replacing how things had often previously been done by telephone. This is a strong indication that online mediation is here to stay, with its proven cost and time efficiency winning over users.
The other statistics remain impressive too. Roughly GBP20 billion of disputes are mediated in Britain each year. Mediation has saved businesses GBP5.9 billion per year in wasted management time, legal costs, lost productivity and damaged relationships. This means mediation has arrived at the main stream of the litigation system. That said, its race is not yet run – 17,000 mediations per year is impressive, and there remains plenty of scope for further growth, given the 240,000 contested civil law cases in England and Wales each year. As such, the need and the opportunity remain vast.
Despite the expected challenges of mandatory mediation being introduced through the civil dispute resolution system in the English and Welsh courts, particularly for many unrepresented parties in the lower value disputes, the audit indicates that mediators are well placed to meet the challenges. For such mediations, more preparation will be involved, and diligence will be required to ensure appropriate guidance and support is available to unrepresented parties. Yet, for larger value disputes where the parties are legally represented or have a better understanding of the commercial and the legal dynamics of disputes, the status quo can be expected to continue.
All in all, those who provide and use mediation to resolve commercial disputes can rest assured the system works, remains highly adaptable and can thrive whatever the world may throw at it.
How could mediation help?
While a mediator sometimes does not become involved until legal proceedings are underway, that usually does not have to be the case, and early intervention can often be far more desirable.
At the point when substantial costs have already been incurred, achieving a satisfactory settlement can become difficult and the extra costs involved can become an obstacle to an amicable solution.
As some contractual disputes are very expensive and time consuming to resolve formally and may invite unwanted publicity, mediation may facilitate a faster, commercial and discreet resolution.
A wide range of commercial solutions, which judgments or awards cannot achieve, are possible, particularly where there is an on-going relationship, to seek a win-win result, not a bruising win-lose.
A specialist commercial mediator is not only an expert at helping parties reach a mutually acceptable agreement but will understand the commercial situation of both sides and the constraints they face.
The mediator will use their understanding of the way business is done to help the parties to come up with inventive solutions, including ones that the parties might not have considered on their own.
The benefits of seeking an earlier resolution to a dispute
Time is often a big factor in resolving a dispute satisfactorily. Addressing a problem as soon as it is apparent and having an early session with a mediator may resolve the issues promptly by fostering a collaborative approach by the parties and help to improve the relationship.
Where difficulties are allowed to worsen and communication becomes sporadic and combative, it is possible to waste a great deal of time achieving little except a worsening of relations, so it is important to be proactive.
It is also important to approach a problem with an open mind and some flexibility because resolving a dispute at an early stage involves willingness to compromise, and doing so can have many benefits to all involved.
In helping the parties to see the pros and cons of escalating the dispute, and to consider other important ramifications of perpetuating a dispute, a mediator could help the parties to appreciate the perils and to see the value of improving the situation.
Contact us
At Lux Mediation, we offer a range of different Dispute Resolution Services, designed to deal with all types and stages of disputes. We are experienced in and understand the subtleties of online mediation. Our mediators have extensive credentials and experience in areas including maritime, international, EU and general commercial and civil law.
We can step in early to advise you in respect of seeking to resolve a dispute. We work internationally and have an in-depth understanding of cultural differences, which are often of great importance in a successful mediation related to cross-border transactions.
Our mediators are experts in both mediation and commercial enterprise and we have an excellent track record of success in helping businesses to put difficulties behind them so that they can focus on their goals and other more productive activities.
If you would like to explore further whether we can help you to resolve a dispute or you have any questions about the process, please call Lux-Mediation on +44 (0)7876 232305 or email
mediation@lux-mediation.com.
With many years international and domestic experience in mediation, arbitration and litigation Lux Mediation can give guidance on any dispute with a view to a swift and effective resolution.