Can judges be mediators?

The rehabilitation of the Technology and Construction Court (TCC) is under way. But the court seems incapable of grabbing the headlines without a dollop of controversy.

Mr Justice Jackson lays down his judgment today (5 June) in the Wembley-Multiplex litigation, one of the highest-profile cases of the year. As we report on page 1, he also put the wheels in motion last week for a potential revolution in the way disputes are resolved. But to bring in a scheme that will see judges as mediators, he has a fight on his hands.

Barristers and solicitors who use the TCC still refer to the ‘troubles’ the court endured in 2003 and 2004. The root of the problem was Judge Seymour’s judgment in the Co-op’s dispute with ICL in 2003. Seymour laid into solicitors, barristers and witnesses in such a shocking manner that the Court of Appeal was forced to issue a severe reprimand. This damaged the TCC’s reputation to such a degree that solicitors and their clients shunned the court.

The DCA launched a review that concluded with the axe falling on Seymour and the appointment of a posse of specialist TCC judges, inevitably dubbed “the Jackson Five”. Jackson J has worked tirelessly to drag the TCC’s name from the mud, but this new move could be a reform too far.

While mediators and arbitrators obviously have a vested interest in preserving the status quo, there are few who genuinely believe that judges as mediators can work. The best that has been said of the plan is that ‘we might as well give it a bash’.

Mediation specialist Cedr reckons it’s tough turning lawyers into mediators, barristers are trickier and judges are awful. The trouble with judges is that they are judgmental.

Then there is the reputational issue. Australia’s leading mediator, former chief justice Sir Laurence Street, wrote: “The involvement of a custodian of power as mediator imports the real risk of a party feeling a sense of coercion and hence a disenchantment with the mediated outcome that can reflect back adversely on the court.”

Jackson J is part of a new breed of progressive young judges and could be on a fast track to the Court of Appeal. His reforms have been supported by the senior judiciary, but his career could probably do without more controversy. Never mind, m’lud, at least there’s the Wembley judgment this morning – shouldn’t be too much controversy there…