Michael Mills was recently asked to comment on two questions:
- What are the key trends shaping the mediation landscape as we approach 2025, and how are they impacting the way disputes are resolved?
- What advice would you give to both seasoned and new mediators about preparing for the challenges and opportunities that the future of mediation will bring?
His comments are set out below, followed by a link to its publication in Lawyers Weekly (21 November 2025 – Part 1 and 9th December 2024 – Part 2) along with the comments of the other interviewed parties.
The mediation landscape has been reasonably settled for some years, but changes are looming.
The rapid increase in the use of mediation has been followed by a period of steady, but continuing increase in its use. Mandatory mediation in a number of spheres – small business claims, family law, personal injury compensation to name a few – have become common and successful. Indeed, successful mediation resolution rates are often put at north of 70%. At the same time, Judges in superior commercial courts are much more willing to push reluctant parties to participate in mediations. As Chief Justice Spigelman regularly observed: “… people are reluctant to admit that they might have some weaknesses in their case and therefore don’t offer to settle or mediate … Whereas if they are forced into it, experience is that reluctant starters often become participants … [and] often leading to a successful resolution of the dispute.” At the same time, the traditional complaints and concern about the cost, delay and toll of legal proceedings, continue to be regularly made by parties to Court proceedings. Settlement of scheduled trials on the doors of the court also continue to bedevil Court administrators’ efficient use of expensive Court resources.
Post a Covid abatement, there is an uptick in on-line mediations, as parties look for an efficient and quick means to resolve their disputes. The concerns and cost of higher interest rates, business and living expenses has also seen an increase in the number of mediations which involve business hardship. Mediation with its emphasis on a quick, efficient and empathetic approach to dispute issues and resolution, seems to be proving increasingly attractive for business disputes.
These two trends are likely to see parties and Courts continue to encourage and if procedurally available, insist on the use of mediation. Whether legislative/Court process changes are made to facilitate this, is more uncertain. At the same time, hybrid models of alternative dispute resolution are also likely to grow in their use. For example, med/arb (combined process of mediation and arbitration) early neutral evaluation, conciliation, expert determination and the like.
Overseas, these same trends have prompted various initiatives to facilitate both the greater and earlier use of mediation. The recently completed survey of the legal profession by the NSW Law Society on the present use of mediation will no doubt prove to be very instructive on this front, including its feedback from the legal profession on how the use of mediation and other ADR processes can be better utilised in the resolution of disputes.
All of this means for mediators, seasoned and new alike, that 2025 is likely to bring a growing and probably increasingly sophisticated demand for ADR services. For dispute lawyers, mediation is likely to continue to play a more prominent role in the resolution of disputes. To prepare for this, as so many mediators privately observe, dispute lawyers need to balance the tension between the adversarial process of litigation and the opportunities presented by mediation for successful outcomes; which usually requires a much more collaborative and problem solving approach to dispute resolution. This is much more challenging than it seems. Which is why so many lawyers treat mediation as a continuation of the litigation process and nothing more than a “mini-trial” or pre-trial settlement conference. With the result, the resolution strategy is often no more nuanced than: “this is why we will win at trial and you [my opponent] are wrong” or if that doesn’t succeed (as it often doesn’t); a fall back plan of “see you at trial” or barter for a compromise. However, there are also signs that young lawyers’ education and training in mediation and other ADR processes is generating in matters in which they are meaningfully involved, a more knowledgeable and sophisticated approach to mediation and dispute negotiation.
He added, “Negotiation and mediation are quite different. It doesn’t mean that lawyers can’t be good mediators, of course they can, and they are, but there is some particular training and skills that are required to be a good mediator, just as there are to be a good lawyer, or a good dentist or an architect.”
Mills explained his experience in applying the skills in practice, were that “it will better prepare you for when you a) appear before a mediator, as all litigation lawyers almost invariably do, and b) because it will broaden your skills in term of how you look at disputes; how you look at and participate in negotiations; and how you can best advise your clients. It helps enormously.”