New Zealand’s Geoff Sharp raises some interesting questions in his recent blog post, “The Claims We Make”. In it he questions the value of what he sees as a trend towards the increasing use of statistics by mediators – largely independent mediators – in an effort to distinguish themselves in the market. He quotes various examples of mediators publishing statistics concerning:
1) the number of mediations they have handled
2) the kind of case and number of parties involved
3) settlement or “success” rates
4) hours/years spent in mediation
I’ve noticed this trend, too. In September 2012 The Legal 500, for example, published for comparison purposes the numbers of mediations conducted by the UK’s leading commercial mediators over the preceding 12 months.
What the above might suggest is that mediators are becoming more transparent. Information being power, this ought to be a good thing for end users. Nevertheless there are helpful stats, and unhelpful stats, I’d suggest.
The number of mediations handled is the critical stat. In the absence of any other meaningful measures of quality, the number of appointments is at least an indicator of market endorsement. At the same time, mediation is often a price-sensitive purchase, and volume needs to be viewed in conjunction with billing rates.
At the less helpful end of the spectrum are settlement rates, sometimes – and perhaps misleadingly - referred to as success rates. Such stats are troubling as commercial users now widely accept that a mediation can be “successful” without necessarily settling. Indeed, there are some cases which emphatically should not settle. When I see percentage settlement rates up in the nineties, I don’t correlate that figure with the skill of the mediator. Like many, I’m often suspicious that mediator concerned isn’t being appointed to handle complicated cases. Added to this, the issue of precisely when a mediation can be said to have settled is not straightforward. If a mediation settles three weeks post mediation, can a mediator claim credit? If so, then at four weeks, or six months? Such stats also infer the reverse: that is, if a mediation doesn’t settle it is a failure attributable to the qualities of the mediator.
As regards other stats Geoff mentions, I’m inclined to think that publishing hours spent mediating is interesting, but ultimately window dressing.
Statistics, then, should be helpful. But things are rarely so simple. Mediation is of course confidential, and while the process depends to an extent on the integrity of the mediator, in view of the difficulties in a) keeping accurate stats b) the impossibility of verifying them, the cautious may be forgiven for viewing them with circumspection.
In light of the above, and anticipating the scorn with which a professional statistician would likely treat such figures, could these figures damage the profession? The risk is that while the profession needs to be presented as credible, intellectually robust, and above all honest, that these stats speak to the opposite. On balance therefore, I conclude that marketing by numbers is to mediation what painting by numbers is to fine art.
As the mediation marketplace worldwide becomes increasingly saturated, distinguishing between mediators is becoming more difficult. The publication and promotion of dubious statistics will likely increase, but the underlying fundamentals of mediator marketing will remain. Jay Welsh, our own Exec. Vice President and General Counsel, says that if you’re not getting cases there are only two reasons: either people don’t know you’re there (and this can be fixed), or that people know you’re there, and don’t want to use you. For those in the latter camp, no amount of marketing can help. And numbers won’t either.