A proposed pilot “Court Settlement Process” (CSP) has been drafted by His Honour Judge Toulmin CMG QC of the Technology & Construction Court (TCC) and Mr Justice Ramsey. Click here to download the draft CSP. The proposal is that the TCC should run a pilot scheme, with a view to possible extension of the CSP to other Courts. The consultation period expired on 28^th February 2006. At the date of this Update, there is no news from the TCC as to the adoption, amendment or abandonment of the proposed pilot CSP.

What is the draft CSP about? What is the tenor of some of the responses to the consultation?

The draft CSP provides that the TCC Judge who is assigned to the case may himself mediate the dispute (as opposed to the present system of giving directions that permit of mediation by private mediators outside the Court system). If the CSP does not produce a mediated settlement, then the same Judge may evaluate on a non-binding basis.

Either way, that Judge takes no further part in the court proceedings and another Judge of the TCC takes over the case. Some responses to the consultation have said that the CSP should not be proceeded with at all but that it might be beneficial for the TCC to look its Judges providing a service for early neutral evaluation (but not mediation by Judges).

The Detail:  Responses to the consultation on the CSP were sent to the TCC by: 

- The Chartered Institute of Arbitrators (click here for the full CIArb response);

- The Technology and Construction Solicitors’ Association (the TeCSA response will be put up on its web site soon but is not there as of the date of this Update: click here); 

- and others, including individual mediators.

Some of the important points that have been raised are:

Training and experience in mediation is not mentioned in the CSP as a pre-requisite to a Judge mediating. 

The implied assumption appears to be that every Judge will be permitted to mediate and that there will be no system for putting forward only Judges who are trained and expert in mediation.

There does not appear to be a demand amongst solicitors or their clients for TCC Judges to act as mediators.

Under the CSP, the Judge may decide of his own initiative when is the appropriate time at which a settlement might be possible. That appears to cut across the parties’ right to self-determination of their own commercial positions. Probably no-one except the parties and their lawyers can know the right time to mediate.

A Judge suggesting that he might be the mediator raises a great many issues of procedure and public policy. It cuts into the parties’ freedom to choose their own mediator (to fit the case, the individuals and the style of the mediator they want) by restricting the choice of Judge-mediator to one person.

The CSP is to end at a time fixed by the Judge. Mediations in complex cases are not usually capable of time-limited mediation.

Only the papers filed in the litigation are to be used (so, for example, no without prejudice or Part 36 offers or inter-party letters or quantum documents or the contract or experts’ reports not yet filed could be looked at). That will be unlikely to promote successful mediation.

Confidentiality within the Court is not addressed in the CSP.

The immunity of Judges under the CSP is said to be that of a Judge but there is no mention of professional indemnity insurance or what is to happen if there is a breach of confidentiality leading to loss.

It may be said that mediation works best when it has a respected Court (such as the TCC) standing apart from mediation and ready to give a judgment if it is needed. Mixing the two may lead to the possibility of the CSP Judge being coercive and evaluative and the process could damage the reputation of the court in both mediation and in its routine work as a tribunal evaluating the legal rights of the parties.

It may be that mediation by Judges is inconsistent with the over-riding objective of the Civil Procedure Rules (CPR). Further, it may be that the CPR does not permit of Judges mediating in any event (contrary to the contention put forward by the TCC in a discussion paper that the  current CPR itself creates authority for Judge-mediators).

Several responses suggested that the TCC might usefully look at having an Early Neutral Evaluation process available (but not mediation). That was on the basis that parties might find it helpful in appropriate cases and that it would further the over-riding objective of the CPR.

We must now await a decision from the Judiciary as to what is to happen to the proposed CSP.