Undoubtedly, mediation has risen in prominence and popularity as an effective mechanism for resolving complex disputes. The commercial and cost benefits of appointing a trained neutral third-party mediator to facilitate discussions within a pragmatic framework and quickly reach a “win-win” outcome is valued globally by legal practitioners and parties alike. Therefore, this Global Legal Post Law Over Borders Comparative Guide to Mediation will consider the development of mediation and its role in the international disputes market, with contributions and insights from leading private practice dispute resolution lawyers and General Counsel, many of whom are supporters of mediation.

For the purposes of clarity, mediation is defined by the Centre for Effective Dispute Resolution (CEDR) as a flexible process, conducted confidentially, in which trained neutral mediators actively assist parties to work towards a negotiated settlement. Statistics gathered in CEDR’s 2023 Tenth Mediation Audit support the contention that mediation more often than not results in settlement. This is my experience. CEDR’s Mediation Audit noted an aggregate settlement rate of 92% in 2022, which includes a 72% settlement rate on the day of the mediation and a 20% settlement rate shortly after the mediation day. This not only supports the contention that mediation is highly effective for parties where novel areas of law do not need to be considered by the courts, or legal precedent does not need to be set, but also confirms that the presence of a highly experienced and trained mediator is an effective way of solving deadlock and focusing litigating parties away from blame and towards a less combative form of dispute resolution, where a legal and commercial resolution can be reached.

Although privacy, flexibility and a lower conflict environment are amongst the significant selling points of mediation, there have also been clear moves by the United Nations General Assembly, legislators, regulators and the courts to promote mediation. The contributors to this Guide will share further insight into mediation regulation across the globe, but one notable instance of the unequivocal acceptance of mediation within a legal system occurred in England and Wales in 2024: Churchill v. Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.

In Churchill, the Court of Appeal ruled that judges in England and Wales have the power to order a stay to proceedings and/or order parties into Alternative Dispute Resolution (ADR). Following Churchill, the Civil Procedure Rules (CPR) (which govern how civil cases are handled in England and Wales) were updated to give effect to this decision (Civil Procedure (Amendment No. 3) Rules 2024 (SI 2024 No. 839)). CPR 1 now explicitly contains powers for judges to order parties into ADR in the interests of case and costs management. Significantly, the Courts are actively utilising these new powers and are applying costs sanctions to litigants who have not engaged in mediation, or another form of ADR, prior to the commencement of their court proceedings (see Northamber v. Genee World [2024] EWCA Civ 428).

Within a global context, the Singapore Convention on Mediation (the “Convention”) created a “uniform and efficient framework for international settlement agreements that fit the criteria resulting from mediation” (see www.singaporeconvention.org). With 57 signatories, including the United States, United Kingdom, Singapore and China, the Convention will facilitate the cross-border enforcement of mediation settlements. Previously, settlement agreements arising from mediation would have required separate claims to be brought in court to enforce the terms of that agreement. Now, under the Convention, parties wishing to enforce an agreement need only apply directly to the courts of a country which has ratified the Convention, providing an easier path and more certainty to the mediation parties.

In recent years, accelerated by the shift to remote hearings due to the pandemic, mediation has used technology to make it more efficient, for example hybrid mediations using Zoom. I have had several mediations held remotely since 2020. In my experience, a hybrid mediation requires more legwork beforehand to make it easier on the day and improve the likelihood of a successful outcome. I therefore spend substantial preparation time with the clients getting them to understand the dynamics of the virtual mediation and considering: the right team (I favour, at least, the client’s deal maker and numbers person plus the right lawyer); what is going to be said in the opening session (I like the client to have a central speaking role); and the shape of any settlement agreement (for example, calculating the realistic quantum of the claim, identifying legal costs, interest and tax issues). Finally, on the day, the mediation team needs to be prepared, agile, laser focused and above all, committed. Even if no settlement is reached on the day itself, a lot of analysis and the work will assist the underlying case. In any event, the costs will be modest when compared to the costs of trial and enforcement, the litigation risks and the loss of management time and control.

Artificial Intelligence (AI) has been pervasive in discussions concerning the future of many service industries and the dispute resolution industry is no different. Sir Geoffrey Vos, Master of the Rolls (Head of Civil Justice in England and Wales) has expressed support for the use of generative AI technology (GenAI) to assist with the resolution of legal proceedings. Given the trend for parties to “write the talk”, the volume of data litigating parties have to gather, cluster, curate and analyse is substantial and therefore I think the use of GenAI is no longer “optional” but necessary in dispute resolution, including mediation and litigation.

At this stage in its development, GenAI requires human oversight; it cannot be viewed as a final authority, and any bias, assumptions or conclusions in the information GenAI provides must be professionally assessed. However, as GenAI tools continue to develop, a tipping point will be reached where less complex mediation matters could be resolved using this technology. The impetus to increase access to mediation services and reduce legal costs will drive its development, in the same way that the United Kingdom’s National Health Service website is increasing access to medical advice using AI.

Currently, according to the 2023 Tenth CEDR Mediation Audit, approximately 17,000 mediations take place annually in England and Wales. These are supported by a finite number of Civil Mediation Council registered mediators — at the latest count only around 600. Ultimately, demand for mediation services will continue to grow fuelled by recent changes in regulation, the Convention and the use of GenAI. Clearly, change will be a constant factor in the provision of mediation services as this sector continues to evolve. However, public confidence in a wholly “digital mediator” will not only require greater faith in GenAI technology, but also greater trust in its handling of confidential data. Transparency will be key in terms of advising clients of the GenAI tools employed and how the integrity of the mediation is maintained.

The insights shared by our contributors will provide guidance and a broader understanding of mediation and its challenges but also a glimpse into the future where GenAI enhances mediation’s role in dispute resolution.