Resolution: judges trained to offer alternative to mediation

Judges in the Technology and Construction Court (TCC) are to take part in a pilot of a controversial settlement process.


Under the scheme, which will run until 31 July 2007, a judge will, as part of court procedure, be able to help parties achieve an amicable settlement.


The process - which is confidential, voluntary and non-binding - would involve the judge participating in a settlement conference, where they would be able to express views on the dispute. If a settlement is not achieved, the case would continue but under a different judge.


The process is intended to provide an alternative to the likes of mediation and early neutral evaluation. The judges involved have been given additional training in dispute resolution techniques.


Caroline Cummins, chairwoman of the Technology and Construction Solicitors Association (TeCSA) and a partner at CMS Cameron McKenna, said: 'TeCSA was not very keen for a number of reasons, mostly because we feel that the judges are best at being judges. The mindset of a judge is different from the mindset of a mediator.'


The association was also concerned that the process would reduce the necessary distance between judges and the leading players in the construction industry, which are often repeat users of the TCC, because it could involve confidential business discussions.


However, Ms Cummins praised the TCC for being innovative. 'Although we put all of our points across, it would be wrong to criticise the court,' she said. 'It does show [it is] customer-focused. It is only a pilot and there's no compulsion.'


Simon Tolson, senior partner of Fenwick Elliott, added: 'I am cool about the idea as judges are for judging and, if they stray beyond these four corners, the process becomes decidedly less deterministic and more touchy-feely. I suspect most of my clients will be cautious.'


However, Paul Darling QC, chairman of the TCC Bar Association, said: 'I understand people have concerns, but those do not mean it is not worth giving it a try.'