In fact, it's a damn good idea.
Compare Vinden with Bingham. When I do this adjudicating malarkey, I want the facts, the evidence, the law, the promises, the remedy and the proof of the remedy. With these I reach my decision and that's that. Vinden is a much nicer person. He likes to call a meeting of the parties. He tells them he wants to talk through the evidence and law and remedies and proof, but then he bolts on his optional extra. He tells them he will be encouraging them at this meeting to "agree elements of the dispute as the meeting progresses and, if possible, agree the entire dispute". He creates, he says, an environment for compromise. He tells the parties it is their dispute not his and they can do without him imposing a decision on them.
Vinden admits that he doesn't mediate in what he calls the strict sense. I call him an "adjudimed" rather than a "puremed". Pure mediators have no authority to impose binding decisions on the disputing parties. Pure mediators are go-betweens, helpers much like a midwife. The pure mediator takes each party into separate rooms and talks in confidence, in secret, to each party about the strengths and weaknesses of that party's case and the wisdom of maintaining that position. He hovers between the separate rooms. But the adjudicator-mediator can't do that; or, at least, can't do it unless the parties unequivocally agree in writing, on tablets of stone, that the adjudicator can hear private views, keep those views to himself, then ultimately impose a binding decision if the parties fail to decide the matter themselves.
The ‘adjudimed’ fosters compromise. He tells the parties it is their dispute not his and they can do without him imposing a decision on them
Vinden quietly coaxes the parties to "adjudimed" and has developed a protocol of "dos" and "don'ts". Begin with his "dos". Tell the parties of the intention to create the atmosphere for collaboration.
Explain how self-created solutions to disputes are beneficial. Invite them to say whether they are comfortable or unhappy with this approach; he will stop if asked. Encourage everyone to separate the personalities from the dispute. Begin a search for common ground. Create a pause in the meeting for the adjudimediator to leave, so as to allow the disputants to explore for themselves options for partial or fully negotiated settlements. Rehearse with the parties a range of options from which an imposed decision may be chosen. This helps parties focus on their positions and increases the range of possibilities for settlement. Question the parties in each other's presence as to what is understood of their position, allowing them to hear explanations. Keep reminding the parties that the adjudimediator will decide for them if they can't or won't. And of course, remind the blighters that if they do compromise, they must not forget to deal with who pays the midwife's fees.
As for the "don'ts", it is worth repeating that it is not the done thing to meet the parties separately as a mediator would. Living dangerously, according to Vinden, is being tempted to retire with one party to listen in private because a mediator is barred from revealing what he hears privately to the other party. This is the fundamental difference between pure adjudication and pure mediation. The pure adjudicator can always meet each side separately provided he reveals to the missing party what is said. But the pure mediator must not reveal what he hears in private session. So Vinden as adjudicator will not retire with either party – to do so may injure the parties' relationship of trust with the adjudimediator. He reinforces this by avoiding any "off the record" or "without prejudice" meetings. "Don'ts" also include making no comment about the rights or wrongs of any compromise or settlement reached by the disputants. The solution is theirs and theirs alone.
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.