The judges are hitting back

In many respects, dispute resolution is like any other business. If the service provided is below standard then users will look elsewhere. Likewise, once a negative image has developed, it can be difficult to get rid of. For some time now the Technology and Construction Court has suffered from such an image problem. Loss of faith in traditional litigation and the erosion of the court’s workload with the arrival of adjudication made the TCC’s service look slow and outdated.

It would seem the TCC is fighting back. Justice Jackson, the new head of the TCC, has apparently recognised the need for the court to improve and has set about a programme of reform.

It is the latest of these changes that has generated most interest within the industry. As of 1 June 2006, the TCC now allows its judges to also act as mediators. The proposal has attracted its fair share of criticism, but is that criticism really justified? Is the idea of a judge-mediator really such a bad one?

Industry reaction

The proposal has not received widespread approval. The first criticism is that the skills needed for a successful judge are at odds with those needed for a good mediator. By definition a judge makes an evaluative assessment of a case whereas a good mediator is a facilitator. Some have questioned whether judges, used to a particular mindset, would be able to cope with such a change in approach.

It has also been argued that TCC users might lose faith in the judicial process or in specific judges in particular, if commercially sensitive issues had been previously discussed before the same judge.

Is this criticism justified? Is there a genuine concern over the ability of the TCC judges or are there some who would rather the TCC did not move into their market? Mediation is, without doubt, a skill and something that individuals have a natural talent for rather than learning from training alone. It could well be the case that some TCC judges will find the transition difficult. However, there is no reason whatsoever why some judges could not also be successful mediators.

The option to hold mediation at the TCC itself might help to focus the minds of some litigators. The very fact that the mediator will be an experienced TCC judge could encourage some to listen more carefully.

Finally, there is one key element that could set it apart from anything else available in the market. The scheme allows the parties to agree that the mediator, in addition to mediating, can also give an early assessment of the respective merits of the parties’ cases. Even the most hard-nosed litigator might find it difficult to pursue a case if they have been alerted to weaknesses in their argument by an experienced TCC judge.

As is the case with all forms of dispute resolution, it will be the users who decide whether the proposal is a good idea or not. What is clear is that the TCC has recognised the need to change and might well have found a niche in the market.