UK commercial mediation market grows 20% – CEDR mediation audit results published

The Centre for Effective Dispute Resolution (CEDR) has released the results of its Mediation Audit 2018, based on a survey of practising mediators in the UK. (The results of parallel surveys of lawyer attitudes to mediation, and of US practitioners’ views, are to be published separately).

The audit is the eighth biennial survey CEDR has conducted in the last 16 years (in conjunction with the Civil Mediation Council).  The 2018 audit received 336 responses from UK mediators.

While it is important to bear in mind the empirical limitations of such reviews based on survey responses from a sample of market participants, the audit does indicate a number of interesting trends in civil and commercial mediation in the UK.    CEDR’s key findings from the responses include: Continue reading

Investor-State mediations: new mediator competency criteria released

The International Mediation Institute (IMI) has published "Competency Criteria for Investor-State Mediators", designed to assist with the selection of suitable mediators for disputes involving private sector entities and States.

The Criteria have been prepared in response to that fact that, while a pool of Investor-State arbitrators has developed over the recent years, and while, in parallel,
mediation of international disputes has gained momentum, there is as yet no readily available pool of accredited or identifiable Investor-State mediators from which parties can choose their mediator or co-mediators.  In particular, it is based on an acknowledgment that (i) the skillset required of mediators differs substantially from that of arbitrators and of other neutrals such as conciliators and adjudicators; and (ii) not all competent mediators may be suitable for mediating investment disputes, given the particular legal, political and procedural issues commonly arising in such disputes (such as questions of who has authority to represent the State, public interest defences, transparency concerns and sovereign immunity claims).

To discuss the use of mediation in investment disputes, contact Alexander Oddy (Head of ADR) or a member of our leading investment treaty arbitration and investment protection practice.

 

 

UK: CEDR launches seventh biennial Mediation Audit

The Centre for Effective Dispute Resolution (CEDR) is inviting interested parties in the UK to take part in its Mediation Audit 2016.  

The audit, run in conjunction with the Civil Mediation Council, is the seventh audit that CEDR has conducted in the last 14 years.  (We reported on the results of the last audit here.)   The biennial audits are a valuable source of data on various aspects of the UK mediation landscape, including settlement rates, perceptions of mediation standards and priorities for development.

The audit comprises a survey for lawyers (in private practice or in-house) and a separate survey for mediators (including legally qualified mediators).  Each survey should take no longer than 10 minutes and is on an anonymous basis.

The survey closes on 30 April 2016, with the results to be published in late May.   

 

 

Updated CEDR model documents and rules

The Centre for Effective Dispute Resolution (CEDR) has updated all of its main model mediation documents and rules.  The updated documents are available on the CEDR website here (requiring free registration). They include:

  • ADR contract clauses
  • Mediation Procedure
  • Mediation Agreement
  • Settlement Agreement
  • Tomlin Order
  • Code of Conduct for Mediators
  • Expert Determination Agreement

In addition, a new model document has been created – a model ADR Notice, which is referred to in a number of the model documents. CEDR now provides a model notice for inclusion in correspondence to be used between the parties and a mediation provider to facilitate the start of the ADR process.

The key changes from the 2014 versions of the documents are summarised in the accompanying notes, here.

 

UK: New ADR service for costs disputes

The Association of Costs Lawyers (ACL) has launched an ADR service dedicated to the resolution of costs disputes.  The service, which will initially be limited to mediation, will be provided by a panel of eight mediators, including former Senior Costs Judge Peter Hurst and three costs lawyers.   ACL plans to extend the service to include early neutral evaluation, arbitration and multi-case mediation.

Lower value disputes will be conducted via telephone mediations, involving private calls between the mediator and each party as well as joint teleconferences where appropriate. Higher value disputes (and all solicitor/own client disputes) are more likely to involve face to face mediation.  Continue reading

New Singapore mediation institute launched

On 5 November,  the Singapore International Mediation Institute (SIMI) was officially launched by Singapore’s Senior Minister for Law and Education, who described mediation as the “third jewel” in the crown of Singapore’s legal services landscape, alongside arbitration and international litigation.

SIMI, which has a partnership relationship with the International Mediation Institute (IMI), was founded by and is housed at the National University of Singapore Faculty of Law.  It is the fruition of a recommendation by the International Commercial Mediation Working Group, appointed by Chief Justice Sundaresh Menon and Singapore’s Ministry of Law.

As a professional standards body, SIMI will not itself conduct mediation sessions but will provide users with tools to make basic decisions on using mediation and choosing a suitable mediator. More details on SIMI’s remit can be found here.

 

 

Landmark convention in London produces new data on what corporate users need from ADR

Herbert Smith Freehills was pleased to be the principal sponsor of a major convention held at the London Guildhall on 29 October on ‘Shaping the Future of International Dispute Resolution’. The occasion brought together over 150 leading stakeholders involved in ADR from over 20 countries – including corporate users, ADR providers, advisors, the judiciary, legislators and educators.  

Hosted by the Corporation of the City of London, and with keynote addresses from the Lord Mayor of London, Fiona Woolf, and Master of the Rolls, Lord Dyson, the convention was organised with the cooperation of over 20 of the world’s leading arbitration and ADR organisations.

The focus of the convention was to identify whether there is a gap between what corporate users need from international mediation and arbitration and what leading ADR service providers including dispute resolution institutions are delivering – and, if so, how that gap can be bridged.   Almost half of the 30 panellists contributing their views were corporate users, including senior in-house counsel from GE, Shell, Akzo Nobel, Standard Chartered Bank, Hinduja Group, BT, Orange and many others across a broad range of sectors.

Importantly, the occasion also provided an opportunity for the audience to contribute their views in a structured format. Delegates used individual voting keypads to register their responses to various propositions throughout the sessions, with the results displayed instantly for discussion. In addition, iPads allowed delegates to post and read live comments and submit questions for the panellists.  Given the paucity of research data in this area, the information gathered will serve as useful intelligence for the future development of ADR initiatives both in the UK and globally.  

Continue reading

Updated CEDR model mediation documents

The Centre for Effective Dispute Resolution (CEDR) has for the first time simultaneously updated all of its main model mediation documents and rules.

The updated documents, available on the CEDR website here, include:

  • Model ADR contract clauses
  • Model Mediation Agreement
  • Model Mediation Procedure
  • Code of Conduct for Mediators
  • Model Settlement Agreement
  • Model Expert Determination Agreement

The key changes are summarised in the accompanying Notes, here

In addition, CEDR’s international ADR contract clause has now been published in an additional four languages –  adding Portuguese, Japanese, Arabic and Russian to the existing Mandarin, French, German, Spanish, Italian and English.

In launching the updated documents, CEDR stated that the revisions reflect the changing use of mediation, including its increasing use prior to commencement of court proceedings as well as a trend for many mediations to be set up at short notice. 

Significant changes include more robust language around the confidentiality and without prejudice nature of the process and the inclusion of firmer timelines for mediators to be appointed and for mediations to take place.  Specifically, in all of the mediation clauses there is now reference to a specific number of days (14) from notice of the dispute for the mediator to be nominated by CEDR if no agreement has been reached.  Further, in the clauses referring to an ADR Notice, there is now reference to a specific number of days (28) from the date of the ADR Notice within which the mediation will start.

CEDR has indicated that the new 2014 updates foreshadow a change to its approach to revising the documents. Whereas previously the documents would only be updated when necessary, they will now be updated and reissued annually going forward.

 

Jan O'NeillJan O’Neill

Professional Support Lawyer,
dispute resolution, London
Email
+44 20746 62202

 

UK mediation market growing at rate of 9% per year: CEDR Mediation Audit results released

The Centre for Effective Dispute Resolution (CEDR) has just released the results of its Mediation Audit 2014, based on a survey of practising mediators as well as a survey of lawyers who use mediation.

The audit, which is run in conjunction with the Civil Mediation Council, is the sixth biennial survey CEDR has conducted in the last 12 years.  The 2014 audit received 295 eligible responses from mediators. 

While it is important to bear in mind the empirical limitations of such reviews based on responses from a sample of market participants, the audit does highlight a number of interesting trends in mediation in the UK.    CEDR’s key findings from the responses include:

♦   The UK mediation market grew by an estimated 9% in the last year, based on an estimate of 9500 commercial mediations (at a value of £9billion) performed in the last 12 months. 

♦   Just over 75% of cases settled on the day of mediation and another 11% shortly after (the total success rate being broadly consistent with previous years). 

♦   The proportion of mediators appointed directly (rather than through ADR organisations) decreased to 66% (from 71%).  This is a reverse of the previous trend, which CEDR suggests may be partially due to more successful groupings of mediators.

♦   The dominance of lawyer mediators as a proportion of total mediators has now shrunk to 52%.

Continue reading

Permission to appeal granted where trial arguably unfair as a result of judge acting as “mediator”

In a short judgment dated 11 December 2012 which is yet to be formally published, the Court of Appeal granted a claimant permission to appeal on the basis that his trial was arguably unfair.  The main ground of the claimant’s appeal in Watson v Sadiq and another [2012] EWCA Civ 1817 was that he had been put under undue and inappropriate pressure by the trial judge during the course of the trial to settle the matter through negotiation with the defendant, which resulted in him settling on unfavourable terms and being denied a fair trial. David Phillips, a professional development lawyer in London, and CEDR accredited mediator, reviews this case. Continue reading