Cynics in the mediation fraternity have raised doubts that TCC judges will be any good as mediators, but unhappy souls embroiled in litigation may have another view
The mediation-style dispute resolution service piloted by the Technology and Construction Court, which Anthony Thornton explained recently (9 June, page 48), has sparked debate. In a nutshell, the scheme gives consenting parties involved in a TCC case the option to stay the case for resolution in a mediation-style settlement process (see "8-step guide", below).
The scheme has its critics. Some are concerned that judges are not best suited to act as mediators and that their participation in such a process may, as a result of the judge being closer to the parties and to confidential information, undermine confidence in litigation. But are these concerns shared by the TCC's clients?
Judge-mediation is not a new concept. Construction firms contracting in international jurisdictions may already have experience of similar systems. In the USA, court mediation is well developed. Across the Channel it is not uncommon to find judges intervening to try to settle a case prior to a full hearing - this approach is typical of legal systems where the judge has an inquisitorial role. In Germany, judges have always been free to act informally as a neutral third party to resolve the case outside court. Now the mediation-trained judge has become a figure in Germany's legal landscape, where a similar court-based judge-mediation system is operating across many federal states. Denmark introduced a mediator-judge style pilot scheme in 2003.
And in this country we have already shown that judges may be suited to being mediators. A number of mediation providers advertise retired judges on their panels. There are also many examples of practising barristers, including one recently appointed to judicial office, acting as regular mediators of construction disputes. Being a judge is not incompatible with being a mediator.
The fact is that many construction firms are experienced in dispute resolution processes and are perfectly capable of making the right choice of mediator whether it be a judge or a non-judge. The TCC has reassured us that judges will undergo mediation training, but this does not appear to be a key issue for the construction client. However, rather than worrying about the judge, perhaps those thinking of using the pilot scheme should ask themselves whether the barristers and solicitors they instruct in the TCC case are well suited to the judge-mediation process.
For some time construction clients have been choosing to provide for mediation in their contracts as a precursor to litigation or arbitration. Interestingly, some mediation clauses specify that the mediator should be a senior member of the bar, or retired member of the judiciary. This suggests that evaluative or facilitative mediation by a judge is valued by clients.
Put simply, the TCC is responding to market demand. The move gives the construction client another option, and one that may be conducted in a court environment without the formality of proceedings and at reduced cost. What the parties get is a judicial evaluation that can be taken up in a commercial business context before they become "locked in court" and it is all too late. Some lawyers and mediators may be unhappy about this, but their clients stand to save a lot of money.
While the professions and mediation providers deliberate, for the construction client with a dispute, surely this new scheme is worth a try.
8-step guide to TCC mediation
- Stay your TCC action for mediation by a judge–mediator and enter a mediation order (standard form available at the TCC registry)
- Select the judge–mediator (either the case judge or another TCC judge)
- Agree the framework
- Consider where to hold the mediation (this can be in the TCC or elsewhere)
- Agree whether the judge–mediator should act solely as facilitator or express views
- Record agreements reached in a binding settlement agreement
- Where no settlement is possible, the case continues and judge–mediator withdraws
- Pay the fee (likely to be similar to the judge–arbitrator daily rate of £1400)
Helen Garthwaite is head of construction at law firm Taylor Wessing