A new report on the use of mediation, together with our recent experiences of conducting mediations online during the COVID-19 pandemic, has highlighted that this form of dispute resolution is growing and evolving in both Scotland and England & Wales.
The Centre for Effective Dispute Resolution (CEDR) published its ninth Mediation Audit earlier this month. The report, which covers the period to September 2020, is the result of a biennial survey carried out by CEDR of commercial lawyers and mediators in the UK.
- The number of mediations carried out in England and Wales increased by 38% (from 12,000 mediations in the 2018 report, to 16,500 mediations in the 2020 report).
- The overall settlement rate was 93%, an improvement from 89% in the 2018 audit, with 73% of cases settling on the day and a further 21% settling shortly afterwards thanks to progress made at the mediation itself.
- Only a very small minority of mediations were held online prior to the COVID-19 pandemic (2%). This figure jumped dramatically (for obvious reasons) to 89% during the period between March and September 2020.
What is the position in Scotland?
Whilst equivalent statistics for Scotland have not yet been published, our experience at Brodies has been that mediation has been increasing in popularity as a medium for resolving commercial disputes, with commercial contracts often including a requirement for the parties to consider mediation as part of the contractual dispute resolution procedure. The settlement rate, anecdotally at least, also appears to be comparable to the rate reported by CEDR for England and Wales.
What these results tell us about the state of mediation in the UK
It is clear that mediation is a popular and highly effective dispute resolution tool – its popularity being helped, of course, by the requirement in the Practice Direction on Pre-action Conduct and Protocols to consider whether alternative dispute resolution would be suitable in cases proceeding before the courts of England and Wales.
It has become so widespread, in fact, that some commentators are now questioning whether using the term "alternative dispute resolution" to describe mediation is still accurate or helpful. As Henrietta Jackson-Stops of IPOS Mediation wrote on 17 May 2021:
"The label of alternative – with its suggestion of alternative medicine or simply not being usual – hasn’t helped the proper inclusion of mediation, conciliation and Early Neutral Evaluation (ENE) as credible means of dispute resolution. So I wonder now whether we can begin talking about dispute resolution as encompassing all forms of methods and drop the ‘alternative’."
Online Dispute Resolution
The CEDR audit results, along with our experiences over the last year or so, also demonstrate that mediation has very much been a beneficiary of the revolution in online dispute resolution that was accelerated by the COVID-19 pandemic. Within a month of the Courts closing in Scotland, we acted on behalf of a client in a virtual mediation while the Court process was forced to pause.
We found that, provided that the mediator is experienced in setting up separate "rooms" on whatever platform is being used in order that participants can go into separate and private spaces, online mediation can work very effectively. Just as with an in-person mediation, online platforms can now facilitate the different types of meetings throughout the day that can be used to resolve a dispute. For example, if it is felt necessary for the solicitors to have a private conversation with only the mediator that can be arranged, and the mediator can jump between the different parties' rooms to provide updates as the session progresses.
Anyone familiar with in-person mediation knows that they can be long and exhausting days, often with significant travel time to get to mutually agreed venues. A significant advantage of virtual mediation is clearly that it can be done in a more relaxed setting, which reduces one stressful element from the day. As Graham Boyack of Scottish Mediation wrote in his review of mediation in Scotland in 2020:
"Many mediators are reflecting that not only does online work but that there are some real positives about the process. Participants have said they feel more comfortable mediating from their own homes, there’s no travel involved and that the process can be truly flexible. My conclusion is not that all mediation will be online but that for those who have access to the technology it will be a great option for the future."