Judges told to stick to the day job as mediation pilot fails

The controversial pilot scheme in the Technology and Construction Court (TCC) to test whether judges can act as mediators looks doomed to failure after being used just twice during its first year.

The judges’ mediation scheme, when launched, was greeted with derision from solicitors, arbitrators and mediators, who described it as a terrible idea and not in the public interest (The Lawyer, 5 June 2006). And following the pilot, few minds will have been changed.

The chair of the Technology and Construction Solicitors’ Association, CMS Cameron McKenna construction partner Caroline Cummins, said: “People like judges to be judges, as that’s what they’re good at.”

An interim report from King’s College London shows the pilot scheme, known as the Court Settlement Process, received no interest from litigants in the first quarter of its two-year study.

The research found that almost a third of disputes settled were as a result of mediation, with almost half of the mediators being barristers.

Fenwick Elliot construction partner Nicholas Gould, who was the author of the interim report, said: “At the moment it’s pretty clear that private or commercial mediation is preferred to using a judge.

“Many parties feel that they want judges to give orders and push things forward, which is very different skill sets from mediation.”