MEDIATORS: An Introduction to UK-wide

Last year I said, “Mediation is at a tipping point” and gave an amber warning: “seismic changes are coming for all mediation users – mediators, lawyers and their clients”. The big four were: coping with Covid;

• going digital;
• mandatory mediation; and
• clients.

What has happened?

Coping With Covid

During lockdown Mediation went online. Have we stayed online?

The Centre for Effective Dispute Resolution’s biannual audit reported in February 2023 that 64% of commercial mediations were online. That number seems to be holding up. Mediation providers, mediators and solicitors report a drift back to in-person mediations. But this is a drift, not a stampede. As of 30 August 2024, 44 of my 75 mediations were online, or 70%.

The market’s messages are mixed. See these quotes from three mediations in July 2024.

• “At the end of 2023 I hadn’t done a single online mediation. Since then, I’ve done five. I’m a convert. Online is the future.” This is from a regular mediation user at a litigation funder.
• “I don’t really like online. I prefer in-person. It’s better if you’re all in the same place even if you don’t meet.” This is from a regular mediation user at the same litigation funder.
• “I prefer in-person mediation. I think it’s better. But to be honest I’ve never done an online mediation.” This from a solicitor, under 35, in a well-known firm representing liquidators

And finally, one from a liquidator.

• “Online was better. Settling would have been much harder if we had been in the same place.”

One sad development is lawyers arguing about choosing online or in-person. This is a waste of time, money and goodwill. Why not let the paying party decide? They are the ones under most pressure and facing uncomfortable decisions. Defendants rather than claimants complain about feeling intimidated or bullied. Anything that makes them feel more comfortable promotes settlement.

Of course, it is a different matter if there is an imbalance of power between defendants who are well-resourced, such as insurers, and claimants who are not.

Going Digital

The Digital Justice System (DJS), an initiative led by Sir Geffrey Voss, is changing direction. He explained two key points in his talk at UCL on 14 May 2024:

1. Instead of expanding existing court-based portals, the DJS will facilitate digital connections between existing non-court public and private dispute resolution services and between those services and the digital courts and tribunals.
2. The Online Procedure Rules Committee has been established. This is a watershed moment in the movement towards making all kinds of dispute resolutions accessible to the citizens of England and Wales. “In time, the digital court process will feel like a one stop shop for those that need it most”.

Is AI used in mediations?

Lawyers are using AI-based applications for document preparation much as they do in their ordinary litigation business. AI is not yet a mediator’s digital assistant but is occasionally used at mediations. There are three main ways in which it can be useful: in drafting documents, settlement agreements, apologies, etc; “unfreezing” stuck negotiations; and in risk assessment.

When the parties are stuck, AI can generate questions or suggestions for ways forward. Mediators frequently suggest brainstorming although it is not often done with AI. But just mentioning AI can unfreeze thinking.

Recently a party at a mediation asked me: “When will we have ChatGPT mediators?” My response was: “That’s a good question. If you want, you can try now. Ask ChatGPT what you should do in this mediation to move towards settlement.” They did not in fact try it. But they did start formulating proposals.

Mediation is a chance to reassess both your own case and the other side’s. Mediators encourage this through reality testing – asking awkward questions and putting the other side’s point of view to you.

Why not use AI to do this? Scan in your position paper and ask AI “What tough questions would you ask me?” “Given what I’ve said in my position paper how could I lose at trial?” Use AI for your probability calculations:

• “If I have a GPB1 million claim and a 50% chance of winning on liability and a 40% chance of winning on quantum what is my overall chance of winning GBP1 million?”
• “I am facing a claim for GBP1 million, and I have three defences. I only need to establish one to win. I have a 50% chance on each of the three defences. They are not dependent on each other. What are my chances of successfully defending the claim?”

While you might not actually need a chatbot to do this (you can just use a calculator), merely dictating into ChatGPT during a mediation and receiving the answer within 20 seconds can help. The answers are at the end of this article. *

For many commercial clients, litigation is an investment and doing this helps calculate their expected rate of return.

Mandatory Mediation

Momentum for mandatory mediation is building. Apart from the changes for small claims described last year which came to effect from 1 October 2023 the long-awaited case of Churchill v Merthyr Tydfil Borough Council was heard by the Court of Appeal. The question was could the courts order a stay of proceedings to enable the parties to engage in mediation?

It was actually a bit wider, and the conclusions were that the court could lawfully stay proceedings or order the parties to engage in a non-court-based dispute resolution process, provided the court order did not impair the very essence of the claimant’s right to proceed to a judicial hearing, and was proportionate to achieving the aim of settling the dispute fairly quickly and at reasonable cost.

Perhaps not as clear-cut as we would have hoped for but still helpful.

Are courts now ordering the parties to go to mediation? Some are, according to feedback from mediators. We shall have to wait for the statistics. The Civil Procedure Rules Committee has produced amendments coming into force from 1 October 2024. A new CPR 3.1(2)(o) will expressly provide for a power to “order the parties to engage in alternative dispute resolution”. Promoting ADR will be an express part of the overriding objective under CPR 1.1(2)(f). Whether a party has complied with an ADR order or engaged in ADR will also be expressly relevant to a costs assessment under CPR 44.2(5)(e).

Clients

Mediation remains popular with clients. They like the savings in cost, time, stress and disruption.

The Centre for Effective Dispute Resolution reported in 2023 that there were about 17,000 civil and commercial mediations a year – an increase of 3% over pre-pandemic levels. Expect the next audit to show a further increase.

Anecdotally, mediators, lawyers and providers report more mediation enquiries and more mediations. One solicitor said to me recently “This is my third mediation in six days!”

In a nutshell:

• There are more mediations than ever before and there will be even more.
• Things will be different for all types of mediation users. Clients, ask your lawyers why they are not suggesting online mediation. They may have a reason. You decide whether it’s a good one or not. Lawyers think hard why you are not suggesting mediating online. You may have a reason. Make sure it is one that your clients find credible.
• Increasingly all mediations whether online or in person will be co-mediations: a mediator and their digital assistant.

*Answers from ChatGPT: Q1 20%. Q2 87.5%