One in five lawyers acting in mediations performs less than adequately, with 8% rated as having been very poor, according to a survey of mediators.

The study, carried out by the Centre for Effective Dispute Resolution (CEDR), found that the performance of a further one in four (23%) lawyers was simply rated 'adequate' by the more than 400 mediators polled. Two-thirds (58%) of lawyers were meanwhile assessed to have performed well or very well, with 34% placed in the highest category.


Dr Karl Mackie, chief executive of CEDR, said the performance of lawyers in mediations depended on their level of experience and those who performed poorly lacked know-how and approached the process with the wrong mind-set.


He explained: 'Some lawyers come to mediation with a litigious and adversarial mindset, looking to present their best case rather than seeing the process as a pragmatic forum for reaching resolution.'


Dr Mackie added that lawyers can also be reluctant to let go of control of the case and see the mediator as someone to play games with, rather than recognising them as a negotiation coach.


David Shapiro, head of alternative dispute resolution at City firm SJ Berwin, agreed: 'Instead of trying to find a solution to the problem and focusing on their client's business interests, lawyers often still focus on trying to win their case.'


The results of a second survey into the cost of business disputes and the use of mediation, carried out by CEDR in partnership with City firm CMS Cameron McKenna, also revealed that despite a recognition of the benefits of mediation, the majority of the corporations surveyed do not use it or only use it occasionally.


This survey found that nearly 80% of respondents considered mediation to be more effective than other forms of dispute resolution and that it reduced delay and costs, yet only 38% said they frequently considered using it.


Tim Hardy, partner and head of litigation at CMS Cameron McKenna, said the findings reflected the fact that both sides needed to agree to mediate, and the lack of understanding about the process.


He said: 'There remains a high degree of ignorance in the market place that I didn't expect to find. And there is still a degree of reluctance among solicitors to take cases, which would otherwise be dealt with by litigation, to mediation.


'To get a step change in the use of mediation, there needs to be a stronger drive from clients to use the process. Until there is a push from corporates, the current presumption against mediation will remain.'


  • A high-street based dispute resolution service to help people find the most effective way of resolving small debt claims, business, housing and other consumer disputes without going to court, was launched last week. The pilot scheme - set up by the Department for Constitutional Affairs and Wandsworth Mediation Service - will run until 2007.