CEDR Mediation Audit results: The post-pandemic state of civil mediation

The Centre for Effective Dispute Resolution (CEDR) has released the results of its latest Mediation Audit, the first since the start of the pandemic.

For the past 20 years, CEDR’s biennial surveys of mediators have provided a snapshot of civil and commercial mediation in the UK, identifying key trends and developments.  The latest survey received 328 responses, representing approximately 50% of the individual mediator membership of the Civil Mediation Council.  (The report also includes for comparison some results of a parallel survey of lawyer attitudes to mediation).

Interesting findings in the report include:

  • The civil and commercial mediation market has fully recovered from its pandemic slump, at approximately 17,000 cases for the year to 30 September 2022 (3% up on pre-pandemic levels).
  • Of those 17,000 mediations, 64% were conducted online – confirming that remote mediation has become a permanent fixture of the landscape.
  • Reported settlement rates remain high and consistent with the last audit, at a 92% success rate (73% on the day and 20% in the period shortly after).
  • Interestingly, as we still await a decision on whether the UK will join the Singapore Convention for the enforcement of mediated settlements, 93% of the mediators said they had never or rarely encountered any issues around enforcement of mediated settlements. The lawyer survey reported similar results, with over 60% never having encountered such issues and the remainder only occasionally.
  • Looking forward, the audit concludes that the civil and commercial mediation market has very substantial excess capacity, and would be well placed to handle a significant expansion in case volumes if the Ministry of Justice proceeds with its vision of introducing mandatory mediation for all contested claims in the County Courts, using the private mediation sector (ie beyond its recently announced plans to introduce it for County Court Small Claims, using HMCTS mediators).

The report also provides CEDR’s updated assessment of the overall economic impact of the commercial mediation field, based on both the survey results and operational statistics from CEDR’s own caseload. Its updated assessment includes that:

  • The total value of cases mediated each year is approximately £20 billion (after excluding ‘mega-cases’)
  • Mediation has saved business around £5.9 billion in wasted management time, legal fees, lost productivity and damaged relationships per year
Jan O'Neill
Jan O'Neill
Professional Support Lawyer, London
+44 20 7466 2202

Mandatory mediation: Insights from the LCAM-HSF survey

Herbert Smith Freehills recently partnered with the London Chamber of Arbitration and Mediation (LCAM) to  survey a cross-section of the dispute resolution community on attitudes to compulsory mediation in arbitration and mediation.

The results indicate that there seems to be support for some degree of mandatory mediation in both litigation and arbitration, but that effective system design might prove complex and will need to be tailored to reflect the diversity of proceedings across the broad spectrum of civil disputes.

Please use this link to access the recording of a live webinar in which Craig Tevendale, Chris Parker KC, Gill Mansfield and Jonathan Wood discuss the survey’s outcomes.

Who did we ask?

The Survey attracted just under a hundred responses from a range of dispute resolution practitioners. Over half of the respondents described themselves as external counsel and over one third considered their primary role to be either mediator or arbitrator. The remainder comprised other lawyers and stakeholders (such as in-house counsel, knowledge lawyers, and academics).

While questionnaires of this nature naturally do not provide definite empirical answers, the survey’s results provide some insight into attitudes toward compulsory mediation within a cross-section of the dispute resolution community.

However, it is important to bear in mind that the survey reflects views from across a range of practice areas. As we have previously discussed, the question of whether and when compulsory mediation may be appropriate depends on a range of factors, and these differ markedly between different types of proceedings across the broad spectrum of civil disputes. (For our analysis of how they apply in complex commercial court proceedings, see this article).

Could compulsory mediation be effective?

Many dispute resolution practitioners will be familiar with Dyson LJ’s (as he then was) comment in the seminal Court of Appeal decision in Halsey v Milton Keynes [2004] 1 WLR 3002 that [i]f the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process.” For years, this quote has been a go-to for law students and commentators grappling with the issue of compulsory mediation. However, do practitioners (still) agree with this sentiment?

It appears the survey respondents do not. The survey’s ‘warm-up question’ was whether mandatory mediation could, in principle, be effective. Just under three quarters of our respondents answered ‘yes’. Of course, an “effective” mandatory mediation might not lead to the settlement of a claim in full; a mediation could still be effective if it resulted in a partial settlement, narrowed the issues in dispute, (re-)started a commercial discussion or relationship after the mediation, or contributed to an understanding of the other party’s case. It may be that the respondents were of the view that a skilled mediator might draw out (some of these benefits), even if the parties are recalcitrant.

This view appears to be shared by policy-makers, at least to some extent. Regular readers of our ADR Notes blog will be aware that mandatory mediation has featured prominently on the governmental and judicial agenda, with the Civil Justice Council recommending the greater use of compulsory ADR in a June 2021 report, the Ministry of Justice’s (MoJ) call for evidence and subsequent report considering compulsory ADR, and the MoJ recently announcing its proposal to introduce mandatory mediation for all County Court Small Claims, with a view to this being progressively expanded to other areas of the civil justice system

Digging deeper: comparing attitudes towards mandatory mediation in litigation and arbitration

While our respondents were, in principle, supportive of mandatory mediation, did they think it should be introduced in practice?


In a litigation setting, the answer is clearly “yes”. Over three quarters of respondents considered that the litigation process should provide for compulsory mediation in some circumstances. While the majority of this group (~57%) favoured mediation being a mandatory procedural step at some point in the litigation process, the alternative of mediation ordered by the court when appropriate on a case-by-case basis was not far behind (~43%).

Only a small group of respondents who considered that compulsory mediation could, in principle, be effective considered that the litigation process should not provide for compulsory mediation in some form (around 8%). These respondents all indicated, however, that mediation should be encouraged to a greater extent than it currently is by the courts.

We also asked our respondents how to enforce the mediation requirement: what should happen in case of non-performance (without a valid reason) or perfunctory performance by a party? As might be expected, almost all (96%) were of the view that such conduct should attract some form of penalty. Costs consequences were the most popular penalty, selected by almost 80% of respondents (either individually or alongside other consequences). As the Courts already consider an unreasonable refusal to mediate in their costs orders, respondents’ preference of costs consequences for non-compliance with a mandatory mediation requirement might indicate that they would expect (even) more serious costs sanctions to be applied in those circumstances.

Coming in at second place, almost 70% of respondents considered that, if the failure to mediate was the result of the claimant’s actions, any court action should be stayed until mediation had taken place. The more invasive penalties proved less popular but still attracted some support, with 20% of respondents supporting the striking out of claims or defences in case of non-compliance, and 30% considering that an order for contempt of court was appropriate (in the event of a failure to mediate by the defendant).


Similarly, the overwhelming majority of survey respondents (80%) were in favour of provision for some form of compulsory mediation in institutional arbitration.

Opinions were split regarding the form such a mediation requirement should take. Of the respondents who supported mandatory mediation in arbitration, the most popular approach (selected by just over half) was a pre-dispute ‘opt-out’ system. This would involve institutional rules, by default, providing for mediation, with it remaining open for the parties to opt-out of mediation in their arbitration agreement. Others (just over 30% of those supporting mandatory mediation in arbitration) preferred a power for the tribunal to order mediation as it considered appropriate, on a case-by-case basis. The remainder of the respondents open to mandatory mediation in arbitration preferred a pre-dispute opt-in system, where the default position under the institutional rules is no mediation, unless the parties opt to include a mediation provision in the arbitration agreement.

Returning to sanctions for non-compliance or perfunctory performance – this time in the arbitration context – costs consequences once again came out top of possible sanctions, supported by over three quarters of respondents. At present a refusal to mediate might (but does not have to) have an impact on the exercise of a Tribunal’s discretion in a costs order. An express power to make an adverse costs order for a failure to mediate would strengthen the presumption that such a refusal should be taken into account.

The second most popular option (supported by 60% of respondents) was a power for the Tribunal to stay the arbitration proceedings in case of a failure to mediate by the claimant. The more draconian sanctions for non-compliance were also less popular with respondents in the arbitration context: only a small number of respondents (11%) considered that non or perfunctory performance by the claimant should go the jurisdiction of the tribunal or the admissibility of the claim. This might have been influenced by a concern for challenge proceedings if jurisdiction is rejected on this basis.

Picking your moment: timing of the mediation

Choosing the right moment for a (mandatory) mediation can be tricky: at an early stage of the case the parties might not have exchanged enough information to assess their (and the other side’s) position, at a late stage the parties might have become entrenched in their position or settlement might seem less appealing because of the costs that have been incurred already.

Faced with this question, respondents broadly preferred that the mediation take place early in the course of the dispute. Respondents thought the most appropriate stage for mandatory mediation to take place was after submissions but before disclosure (~45%), followed by pre-action (~32%), after disclosure but before the hearing (~29%), and before submissions/statements of case (~26%). Just under 40% thought that the timing should be flexible, and only under ~10% considered that the mediation should take place post-hearing.

Front-loading mediation to take place before the notoriously expensive document production and/or hearing stages can make sense, both for the parties (with an eye on costs) and from a policy perspective (with the aim of reducing courts’ caseloads). These findings accord with our previous LCAM-HSF Survey on Mediation in Arbitration which concluded that mediations in arbitration usually happen at the pre-document production stage.  However, this question of timing is one of the issues where what is appropriate will be heavily influenced by the nature of the proceedings (as discussed in detail here).

What’s on and what’s off the table?

When asked whether there was any type of case that did not lend itself to compulsory mediation, only 21% of respondents answered in the affirmative.

Some of these respondents referred to substantive areas of the law with a particular public interest element, such as insolvency, tax, estates, fraud, public law (including disputes involving public bodies) and protection of intellectual property. However, the majority of respondents appear to consider that these issues are not less (or more) suitable for mandatory mediation than other disputes.

Of the 21% of respondents who considered that some cases did not lend themselves to compulsory mediation, others instead referred to either (non-substantive) circumstances where mediation may not be appropriate or situations where the kind of relief being sought was not compensatory damages. Responses of this nature included cases where:

  • one party is not participating in the proceedings;
  • injunctive, declaratory, or interpretive relief is sought, or a party is seeking to enforce an on-demand performance bond or debt;
  • there has been a track record of non-compliance with Court/Tribunal orders by a party;
  • the claim is exceptionally urgent; or
  • the claim concerns the breach of a settlement agreement.

These answers suggest that any regime providing for mandatory mediation should at least consider the inclusion of carve-outs for situations where going through the mediation process might not be expeditious. In practice, the easiest way to tackle these issues might be to grant the Court/Tribunal the discretion to override the requirement for mandatory mediation when it does not consider it appropriate in the circumstances.

We also asked respondents whether they considered that mandatory mediation should be limited to claims over or under a certain value. 35% of respondents answered yes and, of those respondents, 80% were of the opinion that mandatory mediation should operate with a ceiling (the other 20% preferred a floor). However, respondents had widely divergent views as to what the appropriate ceiling would be: values ranged from £10,000 on one end to £15.2 million on the other, with an average value of £2 million and a median number of £2 million. These answers reflect the breadth of the respondents’ practice areas, and illustrate that this issue cannot be addressed on a ‘one size fits all’ basis.

For more information, please contact Craig Tevendale, Partner, Chris Parker KC, Partner, Rutger Metsch, Associate or your usual Herbert Smith Freehills contact.

Craig Tevendale
Craig Tevendale
+44 20 7466 2445
Chris Parker QC
Chris Parker QC
+44 20 7466 2767
Rutger Metsch
Rutger Metsch
+44 20 7466 2767

UK government proposes mandatory mediation in small claims and consults on increased regulation of the mediation industry

The Ministry of Justice (MoJ) has launched a public consultation on Increasing the use of mediation in the civil justice system.

It has also given an indication that the government intends for the UK to sign and ratify the Singapore Convention on Mediated Settlements.

The consultation issues

The consultation document seeks views on two distinct issues:

  1. A government proposal to introduce mandatory mediation for all defended Small Claims in the County Court (ie most claims valued below £10,000). Under the proposal, all parties in such actions will be required to participate in a free one hour telephone mediation (not just an information session about mediation) conducted by mediators within HMCTS –  under expansion of the Small Claims Mediation Service (which is currently voluntary).
    It appears to assume that the proposal will proceed, with the consultation focusing on possible exemptions (by case category and/or on a case-by-case basis), sanctions for non-compliance, and how the court should assess whether a party has engaged adequately with the mediation process.
  2. In anticipation of extending mandatory mediation to other County Court claims and beyond, involving use of the private mediation sector, views are sought on whether there is a need for increased regulation and oversight of the mediation industry, such as through accreditation of mediators, formalising standards of conduct and/or establishment of an industry regulator.

The proposal for mandatory mediation of Small Claims, although modest in terms of what it demands of parties, is significant as the first instance of compulsory mediation being made a permanent feature of an entire area of the English courts. Of course, such reform has been clearly foreshadowed over the past year, since the Civil Justice Council’s groundbreaking July 2021 report endorsing compulsory ADR in principle, which has been fully embraced by both the MoJ and the senior judiciary (as noted here).

The current consultation also sits alongside a parallel workstream being pursued by the Department of Business, Energy and Industrial Strategy (BEIS) regarding ADR of consumer disputes outside the court system (such as through Ombudsmen and other ADR schemes). As we recently reported, it is examining the role of compulsion in such schemes as well as introducing measures to strengthen the accreditation framework for consumer ADR providers.

The current MoJ consultation closes on 4 October 2022.

Singapore Convention

Although not the subject of the consultation, the Singapore Convention is mentioned briefly in a section referring to other government initiatives to promote mediation. It notes that these include

“.. proposing to support UK’s intention to ratify the UN Convention on International Settlement Agreements (the “Singapore Convention on Mediation”)“.

It is not clear whether this should be read as confirmation that the government has made its decision on whether to sign the Convention, and we still expect a more formal announcement in that regard following its consultation on that specific question earlier this year. However, the above reference supports the current widespread expectation that it will do so.

For a discussion of the practical impacts of the Singapore Convention for mediating parties, see our earlier posts collected here.

Jan O'Neill
Jan O'Neill
Professional Support Lawyer, London
+44 20 7466 2202

Should the UK sign the Singapore Convention? Weighing the issues…

As we previously reported, the UK government is currently consulting on whether the UK should sign the UN Convention on International Settlement Agreements Resulting from Mediation, more commonly known as the Singapore Convention. The consultation closes on 1 April 2022.

The Convention establishes a framework under which Member States agree to recognise and enforce settlements of international commercial disputes resulting from mediations conducted anywhere in the world (if they fall within scope). It currently has 55 signatories, including nine full Member States.

Since it came into force in September 2020, the Convention has been available to enforce settlement agreements resulting from mediations held in the UK (or anywhere else) in the Convention’s Member States.  However, it is only now that many are turning to consider the detail of how the Convention impacts UK-mediated settlements being enforced abroad and vice versa – and what difference it will make if the UK joins the Convention. Those issues are not straightforward, and extend beyond the Convention’s technical legal operation.

In our view, the key considerations are as summarised below. Taken together, we believe they support a view that the UK: Continue reading

Revised ADR (or ‘NDR’) provisions in the new Commercial Court Guide

The recently released 11th edition of the Commercial Court Guide includes a number of revisions to the section regarding the use of ADR – including a change of terminology to “NDR” (for “negotiated dispute resolution”).

The revisions will not require any substantial change in day to day practice, and a comparison against the previous edition might appear at first glance as no more than a ‘tidying up’ of the wording.  However, the changes are notable in that they can clearly be seen as designed to give effect to the current judicial and government policy drive to embed ADR more fully into court procedure and culture at all stages of the process.

In particular, the revised provisions more closely reflect a system in which ADR is not something that might be considered in appropriate cases but, rather, is a standard or typical step in the mainstream process (which in our experience is the current reality in the Commercial Court for the most part).

Perhaps more importantly, the changes are also more reflective of a system in which both the parties and judge are expected to keep the potential for ADR under active review throughout the entire litigation process (which is something we believe is not always currently the case, and is to be encouraged).  Continue reading

(Non) alternative dispute resolution in the UK civil courts: Has its day finally come?

The last year has seen a notable increase in focus on the role of ADR in the English civil justice system, from both the judiciary and government.

Amongst the various moving parts in what is becoming a crowded landscape of developments are:

  • the Master of the Rolls’ vision for out-of-court resolution options to be fully embedded throughout the court system, rather than an ‘alternative’ to it
  • the Civil Justice Council’s in-principle endorsement of mandatory ADR  last year
  • the Ministry of Justice’s subsequent Call for Evidence on that and other ADR issues
  • the government’s proposed signing of the Singapore Convention
  • the pandemic-led advent of remote mediation
  • recent Civil Justice Council proposals for changes to the ADR requirements within the pre-action protocols.

Jan O’Neill in our London Disputes team has published a post on the Practical Law Dispute Resolution Blog examining the various factors at play. Read the post here.


Jan O'Neill
Jan O'Neill
Professional Support Lawyer, London
+44 20 7466 2202



Mediation in Arbitration Podcast: The Profile of Mediation in Arbitration

We are pleased to share this Mediation in Arbitration podcast, in which Craig Tevendale, Chris Parker and Rebecca Warder discuss the results of the Herbert Smith Freehills and London Chamber of Arbitration and Mediation (LCAM) Mediation in Arbitration Survey (discussed in this previous post). The podcast also covers potential barriers to mediation in international arbitration, how these might be overcome and the future of mediation in arbitration. Continue reading

Mediation in Arbitration: Insights from the London Chamber of Arbitration and Mediation/Herbert Smith Freehills Survey

The Herbert Smith Freehills arbitration team has partnered with the London Chamber of Arbitration and Mediation to conduct a snapshot survey of more than 50 mediators, exploring their experience of mediation in arbitration in 2019 and 2020. The results of the survey shed light on current take-up of mediation in arbitration, the stages of the dispute at which these mediations are most likely to occur, claim values, and settlement rates. In this blog post we discuss and reflect on mediator responses to the survey, examining what the survey results reveal about the current trends in mediation in international arbitration. You can also watch a short video summarising the key findings of our research here. Continue reading