There's no doubt that as decision-makers TCC judges are a class act, but will that make them good mediators? The Chartered Institute of Arbitrators thinks not
"What do you think of our bright idea?" the judges in the Technology and Construction Court said 12 months ago. "We are willing to offer our services not only as construction industry judges but as mediators, too."
All this was set to music; the judges were Gilbert & Sullivan, and hid behind the curtain. The show bombed. Rebranded it is back on at The Strand. The title "mediator" has gone, to be replaced by "court settlement process". True, it doesn't have the same twang about it, but nevertheless the judges have come out. The fact is they want to be mediators.
In the audience taking notes is the "practice and standards committee" of the Chartered Institute of Arbitrators. The judges asked them what they thought of the show. The committee has been a tad too frank. They won't buy the headline "court settlement process". It is mediation dressed up to pretend not to be. Oh dear: rumbled.
But more than that, the Chartered Institute of Arbitrators wants it hoofed off the stage. Mind you, my Auntie Nell, that wily old bird, did ask an awkward question: "Does the Chartered Institute of Arbitrators make money out of mediators?" she asked. Er … well they run training course that cost several thousand pounds a head, and they do charge a lump of cash to appoint a mediator from its own mediator panel …
So the Chartered Institute of Arbitrators want the TCC judges to keep to judging, but forget mediating. First of all, mediators dress differently. I mean to say, how many judges can rustle up jeans and T-shirt with a picture of Che Guevara on the front and "Give it to them babe!" on the back? Yes, that's what mediators wear when on duty.
Next, mediators are cajolers. They warm the parties up with leg-pulls and wisecracks. They get the parties to love them. The mediator becomes a pal, a confidant and a mate. Now then, how may judges can do all that one day and switch the next to being a judge?
The Chartered Institute of Arbitrators' lambasting isn't quite like that of course. It simply points out that mediation requires different skills from that of judging. The exams are harder for judging. Mediators are only asked one question: "What's your name?" The pass mark is 50%.
Chartered Institute of Arbitrators simply point out that mediation requires different skills from that of judging. The exams are harder for judging
"Judges are fiduciary custodians of our system of justice", announces the Chartered Institute of Arbitrators loftily. "Judges are members of a team appointed by the state to decide disputes according to law. They are chosen for their judging skills, remunerated by the state and provided with premises and staff to maximise their efficiency in administering justice."
At this point, Auntie Nell chimed in, "doesn't mean to say a judge can't be a damn good mediator, does it?" But the Chartered Institute of Arbitrators points to a pronouncement by a Harvard professor: "Good mediators should begin by explaining the interests of the parties with a view to ‘creating value' [that's all about enlarging the pie before dividing it] and such value creation requires training and experience different from what judges usually have. The skills required of judges and mediators are sufficiently different that we cannot assume a first-rate judge will turn out to be a first-rate mediator."
Auntie Nell winked again. "My dear, it's a great way to deal with a second-rate judge."
Then the Chartered Institute of Arbitrators got to: "This will threaten public confidence in the court … allowing judges to mediate cases can cause mischief to the point of compromising both the impartiality and neutrality of the court and the appearance of impartiality and neutrality."
The mischief arises even though the judge as mediator will never be the same as the judge as judge; the mischief is because some judges leak. "It would be unrealistic to expect the public to think that a judge mediating a case would never pass comment concerning the mediation, however innocuous or off-hand it may seem at the time, to another judge. Even if no such comment were made, the public is likely to suspect that it was made and the court will fall into disrepute as a result." That Harvard professor described this as "the problem of leakage in a small, clubby court".
My Auntie Nell has begun to giggle.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org