MEDIATORS: An Introduction to UK-wide
Where is Mediation at? Where is it Going?
Mediation is at a tipping point. Evolution, not revolution, has marked the development of mediation in the UK over the last 25 years. Amber warning: seismic changes are coming for all mediation users – mediators, lawyers and their clients. Will it will be a hard rain as some predict? Or will it be Nirvana? What are these changes? There are four main ones.
Coping with COVID-19
Three years ago, we went into lockdown. The world went online. That included mediation. For most mediation users, it was a real shock.
Pre-COVID-19, only 10% of civil and commercial mediations were done online. Most were international ones which were not big enough to justify travelling to attend in person. All change. According to CEDR (Centre for Effective Dispute Resolution), 85% were conducted online.
Even in February 2023, according to CEDR’s 10th Mediation Audit, 64% of civil and commercial mediations are online. As they say, there has been a permanent change in the way we do things. We have not all gone back to the way we were pre-COVID-19. The traditional model of mediation (TradMed) was being challenged before 2020 and now the challenges are greater.
Recall the classic description: “Mediation is a confidential and voluntary process where the parties to a dispute invite a neutral third-party to help them find their own solution to the problem”.
Recall the classic format. You chose your mediator, fixed the date, and went off to the mediation venue. You spent all day there in your private room. Mediators shuffled between the rooms. They encouraged you to stay focused on the mediation and left you homework, so you did not get bored. Settlement was reached. Eventually we signed the agreement and then made our way home.
The standard mediation day was eight hours. With overtime and travel, 12 to 14-hour days were routine. Not any more.
Now mediation is less like an immersive therapy session and more like a pool party where you dip in and out. Online you don’t have to be physically involved in the mediation all day long. You can click Mute and Stop Video, go off screen and do something else. Many clients value this better use of time. They do other work. Their day became less disrupted. It was no longer a case of: “stop the world I’ve got a mediation today”. The mediation has become less of an event and more part of a process.
Downtime has always been a problem. What do you do when the mediator is not with you? You can only talk about holidays and horticulture for so long. Online has minimised this.
In-person mediation is not dead. Direct physical contact can help negotiations. But even within the traditional format there is more flexibility. Two examples are hybrid mediations where some participants are physically together and others online. And there is greater use of timeouts for people to reflect and reconvene online rather than slogging on for 12 hours just becoming more frustrated, impatient and tired.
Going digital
As we exited the CVID-19 pandemic, we ran into Generative AI. The world has been going digital for some time, but in November 2022, ChatGPT hit us. Everything has accelerated. Will it bring utopia or dystopia? Hype and hysteria are everywhere. Fear and dread are matched by hope and faith.
The question for mediation users is this: if the world is going digital how can mediation remain immune? It won't. Not if The Master of the Rolls, Sir Geoffrey Vos and his advisor Professor Richard Susskind have anything to do with it. They are determined to change the way that civil justice is carried on in this country. No more pleadings, paper and physical courts. Instead, a digital justice system based upon smart systems.
As he said in his 2022 Roebuck lecture at the Chartered Institute of Arbitrators Mandatory mediation – the digital solution.
“But what I mean by digital justice is an entirely smart system that operates online, or even on-chain, to identify and resolve the issues between the parties in a far more streamlined and efficient way than the current pleading-based processes.”
Mediation has always been carried out under the shadow of the law. From now on the shadow will be digital. All mediation users, mediators, lawyers and clients will have to become digitally aware and competent.
Lawyers and clients are already using AI for document production, information analysis, risk assessment and prediction. Gaming different negotiation and settlement scenarios can sharpen up your negotiation tactics. This is all transferable to mediation. Even now ChatGPT is being used to draft settlement agreements during mediations or generate questions and suggestions for breaking impasses.
Mandatory mediation
Mediation has finally become mandatory in the UK. In August 2023 the Ministry of Justice (MOJ) produced its final consultation paper. Lord Bellamy said: “The way we resolve legal disputes is evolving for the modern age. Across government, we are developing innovative approaches that will empower people to resolve the dispute swiftly and effectively without the need for a court hearing. Our plans for increasing use of Mediation in the civil justice system are another fundamental contribution to this transformation in the way we resolve our disputes.”
There will be a lot more mediations. To start with they will be lower value – under GBP10,000 and single-issue disputes. This will be expanded for higher-value and more complex cases.
This means more work for mediators and less trial work for lawyers. Coupled with the introduction of fixed recoverable costs from 1 October 2023, this is not necessarily a bad thing for clients. The new regime applies to cases with a value not exceeding GBP100,000. But again, this will be extended.
Mandatory mediations will be online – there aren’t enough buildings to house tens of thousands more mediations.
Clients
Mediation is popular with clients. They like the savings in cost, time, stress and disruption. CEDR reports that the number of civil and commercial mediations a year is about 17,000 – an increase of 3% over pre-COVID-19 levels. All areas are busier especially insolvency, professional negligence and contested probate. Litigation funders have transformed the market. Their business model favours mediation.
As Sir Geoffrey Vos said in the 2023 McNair lecture: “The second premise that I think needs to be understood is that businesses ultimately do not want to pay for things that are available free. And that applies as much to legal services and dispute resolution as to anything else...”
Mediation will have to become quicker, leaner and cheaper if it is going to compete with other players in the dispute resolution space such as ombuds, early neutral evaluation, and judicial settlement meetings.
In a nutshell:
there will be more mediations; things will be different for all types of mediation users. Will you embrace the change or resist it?; andto get the best out of mediation – get ready to go digital. Use AI and learn to love online.