The release a couple of weeks ago by CEDR of the results of their most recent Audit of the mediation market passed by with relatively little fanfare, probably because there was relatively little to make a fanfare about. This biennial audit is just about the only significant regular survey of the UK mediation market so it is worth taking a closer look at what the figures may or may not be telling us. Click here to read the full Audit.
CEDR have been producing the Mediation Audit since 2003 and the results just released are from the Sixth Audit which was carried out in early 2014. As such there is sufficient history to the audit to ensure the trends highlighted are meaningful. However, in its introduction CEDR point out the limitations of the audit – in particular that it covers only a section of the mediation market, namely commercial and civil cases. So significant sectors of the market are not included such as community, family and possibly workplace though this is not made explicit.
What do the figures tell us? I have picked out three survey results that I see as particularly significant and have considered them from a ‘good news / bad news’ perspective.
The market is growing at 9% per annum.
The previous Audit from 2012 had estimated a total market size of 8,000 mediations per year which has risen to 9,500 in the latest figures. The 9% per annum growth is certainly good news in that more cases are being referred to mediation meaning it is increasingly being accepted as a viable alternative to resorting to legal processes. Also more cases means more work for the mediator fraternity, and, most importantly (given the 86% settlement rate quoted by the Audit) it means more clients managing to resolve their issues without the pain and cost of going to court.
Surely then, to quote Ian Fletcher from BBC’s Twenty Twelve and W1A, ‘so that’s all good’. However, the rate of growth has slowed significantly from previous audits. The Fourth Audit was looking at growth rates of 30% pa and the following one in 2012 showed 15%. So we are clearly seeing a drop in growth rates – but what is the reason? The Audit unfortunately doesn’t help us with find an answer. It would be normal for any innovation to see initial rapid growth which diminishes as the market approaches saturation. But for the mediation market we are a long way from saturation. Indeed, there is still massive growth potential for mediation, so we must conclude that this reduced growth rate indicates a definite need for demand stimulation - promotion and possibly regulatory intervention to promote the understanding and use of mediation amongst potential users.
The group of the most experienced mediators has grown by 30%.
The Fifth Mediation Audit had identified that around 85% of non scheme mediations were carried out by an ‘elite’ group of around 100 mediators, suggesting they were averaging around 42 mediations each per year. The good news is that the 85% is now spread amongst a wider group of around 130 mediators with a slight drop of average cases per mediator in this group to around 39 per year. This suggests a positive move towards reduced elitism and increased competition – which is also evidenced in the slight reduction in reduced average fees for this more experienced mediator group. Whilst this is clearly heading in the right direction, it is still obvious that the market is dominated by a small number of well established, well connected and experienced mediators which makes breaking into the market very difficult for new entrants. This is backed up by a further finding in the Audit that the vast majority of ‘Novice’ and ‘Intermediate’ mediators were undertaking no more than 4 mediations per year. Of course, Catch 22 applies in that to secure more mediations, new entrants need experience but to get experience they need to do mediations.
The ‘bad news’ therefore is that supply is outstripping demand. Given there are well over 20 suppliers providing ‘accredited’ mediator training, several hundred new mediators will be entering the market each year. We are seeing therefore demand growth decreasing and supply increasing – this will be an interesting market dynamic, which (taking a positive view) should lead to innovation, choice and challenge to the ‘establishment’.
76% of survey respondents believe the civil justice system should take a more directive approach towards promoting mediation
The 76% figure represents a 10% increase on the previous Audit. Combine this with the increase in those supporting a fully mandatory system (15% up from 10%) and it is clear that there is a shift towards a desire to see mediation being given a ‘push’ by the authorities. In fact I’m surprised that not more than three quarters of those surveyed think this is necessary. If the supply exceeding demand argument suggested above holds true then any additional encouragement to use mediation should be welcomed by those who practice it. If we look at family mediation, the recent changes which have seen the introduction of mandatory mediation information sessions suggest that the government recognise the value of a greater element of compulsion. So whilst this is good news the bad news has to be that there are few signs that it will happen outside the family sector anytime in the near future.
Analysis of the Audit doesn’t throw up any dramatic new trends but shows some helpful messages. The Conclusion section of the Audit uses quotes from Shakespeare to suggest that as a profession we are heading in the right direction whilst recognising that there are significant issues and a lack of unanimity on the approach to take. My own conclusion, also quoting from Shakespeare, would that ‘It is not in the stars to hold our destiny but in ourselves.’ In other words, we can’t wait for others to make change happen, we need to start with ourselves and for me that means spreading the word regarding the many benefits of mediation.
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