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.

The snapshot survey delved into trends in mediation in arbitration, aiming to find out more about the current take-up of mediation in international arbitration. Mediators were asked to fill in the survey in relation to mediations undertaken in 2019 and 2020, answering four very straight-forward questions on:

• the stage at which these mediations occur
• their claim values
• the proportion of mediator caseload they made up; and
• how often mediation in arbitration leads to settlement

Over 50 mediators completed the online survey. Despite the majority of the time period covered by the survey falling into the pre-Covid-19-pandemic era, mediations in the later months of 2020 also fell into the survey window and in that timeframe patterns of claims, and also to some extent perhaps approaches to settlement, will have been impacted by the Covid-19 pandemic. While it will take some time to tease out the impact of Covid-19 on mediation patterns, the fact that the survey covered 2020 as well as 2019 means it provides a reasonably current picture.

The survey results highlighted the following key trends:

• The timing of mediation: the survey showed fairly overwhelmingly that mediations in arbitration usually happen at the pre-document production stage. In fact, only 6% of the mediators who had experience of mediation in arbitration had not done a mediation pre-document production in 2019 or 2020.
• The value of disputes mediated: high value arbitration claims are being resolved in mediation. The majority of mediators we surveyed who reported having some experience of mediation in arbitration said that they had carried out mediations in cases worth over £10M.
• Mediator caseload: a quarter of the mediators had quite a significant mediation in arbitration practice, with around a third of their caseload made up of those cases. 10% of our survey sample had a lot of these cases and told us that the majority of their mediations were arbitration cases.
• Settlement rates: the success rates which were reported by the majority of the mediators were pretty impressive. Just under half of the mediators who said they had mediated arbitration cases had settled at least 70% of these cases at the mediation across 2019 and 2020. Most of these mediators were reporting a success rate in the 80% plus bracket.

The podcast can be listened to on SoundCloud, Spotify and iTunes.

For further information, please contact Craig Tevendale, Partner, Chris Parker, Partner, Rebecca Warder, Professional Support Lawyer or your usual Herbert Smith contact.