Too late in the day

From April to June there have been a spate of articles concerning the proposal that Technology and Construction Court judges act as mediators (see the related articles linked below). All of them cause me concern.

Judge Thornton tells us judge–mediators are to have some training and some experience, but will not become accredited mediators. Would parties in dispute choose a judge, arbitrator or adjudicator with “some” training, “some” experience?

Mediation is described as an “unstructured method of negotiating finality”. Not so. Experienced mediators structure mediations, although it is not necessarily apparent.

The mediator is said to take no part in the settlement. Not so. The most effective mediators will play active roles.

There are references to the judge–mediators as evaluators, expressing opinions, giving rulings. Experienced mediators avoid this. It destroys neutrality. Mediators’ roles can change “mid-mediation”, if parties agree, but it is not a good idea that this should be anticipated because it will affect the parties’ openness and frankness with the mediator if there is any possibility that they will give binding rulings at some later stage.

Mediation is said to be “privileged and confidential during the mediation and forever afterwards”. Contrary to what judge Thornton says there is no “necessary implied agreement” as to confidentiality. It is up to the parties. There are mediations in which it is in the parties’ mutual interest to publish the fact that there has been a mediation and a settlement reached. Experienced mediators will address confidentiality at the outset.

Judge Thornton says that the mediator “flits from side to side”. The use of “flit” belittles the importance of this element of the mediation process.

If there is innate ‘diffidence’ to judges then perhaps they are, by the very nature of their position, not appropriate as mediators

To prevent the parties being overawed in the presence of judge–mediators it is proposed that the mediator be addressed as “judge”. How does that solve the problem? Parties need to respect their mediator but also they need to be able to build a close and trusting relationship rapidly with them. If there is innate tendency for parties to show “diffidence” to judges, then perhaps they are, by the very nature of their position, not appropriate as mediators.

Garthwaite refers to mediation clauses that specify that retired judges act as mediators. She says this suggests that construction clients value judge–mediators. More likely, it is the clients’ lawyers who specify “legal” mediators, when in many cases construction professionals would be a better choice.

She refers to retired judge mediators on mediation panels.

There are excellent judge–mediators but they are retired, trained mediators and in the case of the Chartered Institute of Arbitrator’s panel will, like all the other panellists, have provided evidence of experience and references confirming their skills as mediators.

Bingham says “Don’t engage the court until the arguing has been done and dusted”. Exactly, but if negotiations break down, don’t jump to litigation; use a mediators’ skills. Success rates are high even with early mediations.

He also appeals to judges not to “even begin encouraging mediation until you have seen not just the pleadings but the experts’ reports, witness statements and legal principles relied upon”. This exposes the huge disadvantage of using the TCC judges as mediators. The judges will act as mediators only after the dispute has reached court. A large advantage of mediation is that it can be conducted at a much earlier stage, with consequent savings in time, cost and stress. The experts’ reports, witness statements, pleadings, legal arguments are all required, at great cost, so that the lawyers and the judge can understand the case. They are not required for mediation. The parties know what their main differences are and experienced mediators quickly grasp the important issues.

Parties should think about mediation at the earliest time and use a trained, accredited and experienced mediator. Lawyers who leave mediation until court stage are not serving their clients well. Fortunately most specialist construction lawyers understand the value of mediation and see it as essential to offer skills in that area.