Pilot Mediation Program in UK Using Sitting Judges Fails

The UK magazine The Lawyer reports that a pilot program in the UK’s Technology and Construction Court in which sitting judges mediated the cases before them is headed for failure. The program was created in 2006 over the objections of solicitors, barristers and mediators, who described it as a “‘terrible idea’ that is not in the public interest.”

The practitioners who appeared before the court feared that the program would “damage the reputation of the court both in mediation and in its routine work as a tribunal evaluating the legal rights of the parties,” even though the judges received additional ADR training. Most felt that dispute resolution should be left to the professionals, and after a year, they appear to have been correct. An interim report on the two-year pilot scheme showed “no interest from litigants.” The study further showed that of the nearly one-third of disputes that settled as a result of mediation used a barrister as the mediator.

As an ADR professional, I hate to see programs such as this fail, but in this case, I can understand why. It is my understanding that in English civil courts, in general, and in the Technology and Construction Court, specifically, the judge renders the verdict. Having been a litigator and a participant in a number of mediations, I can understand the reluctance to use as a mediator the very person who may later sit in judgment of your case.

Mediation is a confidential process through which the parties are encouraged to share with the mediator their interests and needs, which they may not have communicated to anyone prior. Parties are also encouraged to think creatively about a solution which may not coincide with their legal rights. These positions are never shared with the trial judge. I imagine it would be hard to look your judge in the face and say, “Well, we know we have some weaknesses in our case, so we are willing to compromise,” and expect him to set aside that knowledge if the matter doesn’t settle and later goes to trial. To borrow phrase used in just about every courtroom drama, you can’t un-ring a bell. As one solicitor said, “People like judges to be judges, as that’s what they’re good at.” The Technology and Construction Court will hopefully learn from this and restructure the program.