Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

Mediation in the United Kingdom is largely unregulated by legislation. There is no central professional body and no particular accreditation that must be gained in order for a person to use the title ‘mediator’. However, a private institution, the Civil Mediation Council (CMC), provides voluntary training and practice standards for individuals and organisations.

The CMC registration scheme for individual civil and commercial mediators includes the following requirements:

  • The mediator must have passed a registered CMC training course.
  • They must follow an appropriate code of conduct no less rigorous than the EU Model Code of Conduct for Mediators 2004.
  • They must have a published complaints handling procedure which meets the CMC’s minimum standards and keep published records of any complaints.
  • They should undertake at least six hours of mediation-specific continuing professional development per year, in addition to other practice requirements specified.
  • They should have professional liability insurance cover of at least £1 million (and additional cover in place where the sums involved in the work exceed that amount).
  • They should have access to suitable and sufficient administrative arrangements.
  • They should be able to demonstrate that they are appropriately trained, experienced and skilled in the disputes that they mediate.

The full CMC requirements can be found here.  

Many alternative dispute resolution organisations will also have their own training and accreditation systems in place.

Mediators who are not affiliated to an accredited provider are free to practise, but in reality are likely to find little work. 

Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

The relationship between the parties and the mediator is governed by a mediation agreement. Mediation agreements may seek to exclude the mediator from personal liability, but whether such an exclusion is enforceable will depend on the application of the rules of contract law to the particular circumstances. Certain liabilities, such as for fraud, cannot be excluded. 

As mediation is largely unregulated by government legislation, there is no particular legal requirement for a mediator to hold professional liability insurance. However, the institution or provider that a mediator is attached to will usually require them to take out appropriate insurance. For example, the CMC stipulates that mediators should have professional liability insurance cover of at least £1 million, plus additional cover where the sums involved in the work exceed that amount. Parties considering appointing a mediator should check that they hold professional liability insurance to a sufficient level before confirming the appointment.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

There is no legal requirement for the parties and mediator to enter into a written mediation agreement, but it is standard practice to sign a written agreement before the commencement of the mediation. Many mediation providers have their own standard template mediation agreement. 

A mediation agreement is a contractual document which sets out the legal framework for a mediation, including:

  • the appointment of the mediator and their role and responsibilities; 
  • that the parties agree to negotiate in good faith;
  • that the representative signing on behalf of each party has authority to bind that party and to settle the dispute;
  • the procedure for the mediation, including any steps to be taken beforehand, such as exchanging position statements;
  • the terms as to confidentiality;
  • that any settlement must be in writing and signed to be enforceable; and
  • the payment of the mediator’s fees and other costs of the mediation.
Appointment

How are mediators appointed?

Most frequently, mediators are appointed by agreement between the parties. If the parties cannot reach an agreement, they may ask a third party (eg, a mediation service provider) to make the appointment for them. 

If the parties have agreed in a mediation clause that the mediation is subject to a particular set of mediation rules (eg, the London Court of International Arbitration Mediation Rules or the International Chamber of Commerce Mediation Rules), the mediator will be appointed in accordance with those rules. This may mean that the institution in question appoints the mediator.

If a mediation has been arranged through a court-operated mediation service, a mediator will be appointed in accordance with the particular scheme.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

The impartiality of the mediator is a fundamental aspect of mediation, and anything with the potential to call that into doubt should be disclosed so that the parties can make an informed decision about whether to proceed with the appointment. Although there is no statutory requirement for a mediator to disclose a possible conflict, it is standard practice do so, and the European Code of Conduct for Mediators, to which many adhere, expressly requires them to be disclosed. Such circumstances include:

  • ‘any personal or business relationship with one or more of the parties’;
  • ‘any financial or other interest, direct or indirect, in the outcome of the mediation’; and
  • if ‘the mediator, or a member of [their] firm, [have] acted in any capacity other than [as a] mediator for one or more of the parties’.

Many mediators also come from professional backgrounds in which conflict checks are routinely carried out in any event (eg, lawyers).  

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

There is no statutory regulation of mediators’ fees. Fees are negotiated in each individual case and reflect the complexity and value of the dispute and the expertise and reputation of the mediator. Often, mediators will offer a fixed fee which covers a certain amount of preparation and a mediation up to a certain number of hours, with additional hours charged over and above the fixed fee at an hourly rate. 

Mediators’ fees vary considerably, but the Centre for Effective Dispute Resolution 2018 mediation audit states that the average fee of a less experienced mediator for a one-day mediation is currently £1,512, whereas the average fee for an experienced mediator is £3,627.

Usually the parties will agree to split the costs of the mediation (which, as well as the mediator’s fees, may also include the cost of venue hire and refreshments), but each pays for their own legal representation. It is also possible (although much rarer) that one party might offer to pay all of the costs of the mediation in order to encourage their opponent to mediate.