CEDR Audit 2018: the A2J issue

The CEDR Biennial Audit 2018 was published at a launch event last night. It includes many useful stats for mediators, mediation providers, the Civil Mediation Council and Civil Justice Council.No doubt the “stattos” will always want more information but it does provide the best available overview of the UK civil mediation market both as a snapshot but also in looking at some longer term trends

The headline is the continued growth of mediation – 20% over two years –  and it is within that growth that there is the most interesting subplot. It remains the case that the majority of mediations are ad-hoc referrals to a relatively small number of mediators. (The Audit reports that 85% of cases are handled by 200 mediators. This does reflect a small change: a couple of years ago that 85% was handled by 145 mediators.) However the “pot” of ad-hoc mediations has grown but only by 9% over two years: the far stronger growth of 45% has come from “scheme” mediations such as that set up by the NHS, the County Court Mediation Pilots and other schemes.

This is substantial growth and goes to a number of issues but principally, to my mind, of access to justice, or, reflecting the thinking of many of the senior judiciary, access to resolution.

We have seen many challenges to the civil process over the years and the ability of the client to access justice: legal fees have escalated, sizeable Court fees add to those costs and the pressures of austerity on the Court Service have added delays and other difficulties. Resolution is slower and more expensive.

“Schemes” respond to a number of issues that I discussed with clients in the context of the Civil Justice Council ADR Consultation. The Consultation itself raised questions about some of the gaps in the provision of ADR – and it seems that “schemes” may be filling those gaps. But clients also felt that there was a need for “best practice” guidelines. It was acknowledged that the flexibility of the mediation process is one of its principal strengths but to a degree this can create an opacity that causes concerns for a client who is asking itself the question of whether a case is appropriate for mediation: doubts are resolved by avoiding the uncertainty.

The growth of “schemes” as with so many “products” reflects the inevitable commoditisation and development of bespoke processes as they become “volume” offerings. Certainty is offered around process and price making the product better suited to the consumer unfamiliar and uncertain about the offering. The CEDR 2018 Audit confirms the continuing success of mediation as a process (85% of mediations continue to successful outcome). The very significant growth reported in the number of mediation schemes and in their consumer take up is therefore one off the most interesting  results of the results of this latest survey with significant “A2J” issues (or “A2R” – access to resolution) and should provide food for thought for the CMC, CJC and other policymakers.