Mediation’s Diversity Problem

 The Centre for Effective Dispute Resolution’s (CEDR) Tenth Mediation Audit was, in the main, another good news story for commercial mediation, reporting that for the year ended 30 September 2022 the total market in England and Wales was in the order of 17,000 cases (about 3% up on pre-pandemic levels), achieving impressive success rates of 92% and resulting in around £5.9bn savings to businesses through earlier resolution of cases that would otherwise have gone through litigation.  

What is troubling however is that there has been no improvement in the representation of women and minority groups since the Ninth Audit in 2020, and slow to no progress for minorities since the Eighth Audit in 2018 which put a focus on the profession’s diversity problem. Four years on, the Tenth Audit paints a picture that is pale, male and stale.  

-       So-called “female involvement” has improved significantly since the 2018 level of 24% of Advanced mediators (those who described themselves as “reasonably” or “very” experienced and account for 76% of the respondents to the Audit). However at 37%, this represents a downward trajectory since 2020 (41%). This is less than, but close to, the level of female representation in the legal profession in England and Wales, where 51% of solicitors in private practice (or 33% of private practice partners) are women – a fair benchmark given 67% of Advanced mediators are also qualified solicitors.

 -       Only 8% of respondent mediators report coming from ethnic minority groups compared with 17% of solicitors, which is no improvement on 2020 (8% of mediators compared with 17% of solicitors), worse than 2018 (10% of mediators compared with 16.5% of solicitors) and significantly less than population as a whole in 2022 (18.3%). Beyond that the statistic is of limited analytical value (it does not tell us anything about the representation of Britain’s black or Asian populations, for example).   

-       6% of mediators report having a disability (compared with 5% in 2018) which is similar to the current levels in the legal profession but about a third less than the population (17.7% in England and 23.4% in Wales).  

-       5% define themselves as being either lesbian, gay or bisexual (compared with 2% in 2018) which again is similar to current levels in the legal profession but half that of the population (10.6%).  

CEDR has done significant work looking at diversity in mediation to date. Its 2019 Report on improving diversity offers commentary on the barriers to progress.  However it is striking that difficulties accessing and progressing in the profession for those from lower socioeconomic backgrounds are not considered, particularly given how hard it can be to make a living as a mediator and the financial burden of training and accreditation. Further analysis (whether by CEDR or another) could follow the Law Society of England and Wales and report on the percentage of mediators whose parents were in occupations classified as professional rather than intermediate or working class (for solicitors it is 63% compared with 34% in the general population) or who attended independent/fee-paying schools than society in general (for solicitors it is 23% compared with 7% of the population). This data would better inform the issue of ethnic diversity given the often larger socioeconomic disparities between and within ethnic minority groups than there are between the ‘BAME’ and white populations. A more nuanced approach to auditing progress is needed, particularly given trends towards greater compulsion to mediate. Some minority groups may not see themselves and their cultural values reflected in the ranks of mediators, which creates barriers to participation and risks unfair outcomes (see D.A. Hoffman and K. Triantafillou on the impact of bias, discrimination and cultural incompetence).

Separately, as the government seeks to embed mediation as an integral step in the court process through the introduction of mandatory mediation in England and Wales, there is a clear opportunity and obligation on the state to do more to promote diversity in mediation, as it has diversity on the bench. As Lady Hale put it in 2018, “the law, the legal profession and the courts are there to serve the whole population, not just a small section of it. They should be as reflective of that population as it is possible to be.” The same rings true of mediation as it firmly establishes itself as a mainstay of our courts.

Ashley McCann, Associate, Gillespie MacAndrew

27 February 2023