Uproar as TCC hands judges mediation role

A controversial new scheme in the Technology and Construction Court (TCC), which will see judges mediating settlements for the first time, has sparked a blazing row in the alternative dispute resolution community.

The pilot of the Court Settlement Process kicked off last week (1 June) and is set to run until next July. It will see TCC judges mediating amicable settlements in construction cases for the first time.

But the scheme has met with resistance from solicitors, arbitrators and mediators, who describe it as a “terrible idea” that is not in the public interest.

“The Technology & Construction Solicitors’ Association (TeCSA) is generally against the idea because mediation isn’t something judges are best at doing,” said TeCSA member Charles Gardner.

Winward Fearon founder and full-time mediator David Cornes added: “The process could damage the reputation of the court both in mediation and in its routine work as a tribunal evaluating the legal rights of the parties, as has happened in other jurisdictions such as Quebec and Israel.”

The pilot follows an extensive consultation process that attracted comment from the TCC Bar Association (Tecbar), TeCSA and the Chartered Institute of Arbitrators, among other bodies. It was initiated after Mr Justice Jackson was appointed as the full-time judge in charge of the TCC in June last year and agreed by the Lord Chief Justice Lord Phillips of Worth Matravers.

Participating judges will have extra training in dispute resolution and mediations may be handled by the judge in charge of the case or by another judge appointed specifically.

Tecbar’s chair, Paul Darling QC of Keating Chambers, said the group had been very supportive of the scheme.

“The system’s only going to be used by consenting adults,” Darling said. “It will be interesting to see if it’s taken up.”