MEETING REPORTS

Mediation Now and Tomorrow Colin Wall
Adjudication Enforcement Application HHJ Anthony Thornton, assisted by Anna Laney and Sam Townend
The Importance of Bias Stuart Kennedy

Mediation Now and Tomorrow:

Colin Wall

20 January 2004

Colin Wall flew in from Hong Kong to bring the Branch up to date on matters mediation. His perspective from afar seemed at times to give him a clearer view of what was happening here in the UK and in Europe.

Colin touched on the Institute's 'Agenda for Change' and the Chartered Mediator regulations. If approved the training will, in length and standard, parallel that for Chartered Arbitrator, with a substantial element provided by academic institutions (including some outside the UK). Also bodies other than the Institute will be able to apply to award Chartered Mediator.

Colin outlined the ethical requirements for mediators: mediation is a consensual, negotiated process, and so the result need not be ‘fair’ as seen by an outsider, but the mediator’s procedure must be. With some exceptions, confidentiality must be paramount, especially confidentiality of any information (or misinformation) given to the mediator in the private caucus sessions. Mediators must avoid conflicts of interest (no success fees, no past or future appointments from one of the parties). Mediators should only accept appointments for which they can provide adequate time and for which they have suitable skills and experience.

The exceptions to confidentiality related to information affecting life and limb (if you learn that a structure is unsafe, you must inform those who can avert the danger) and information covered by the UK Proceeds of Crime Act 2002 (basically any knowledge or suspicion of criminal or ‘laundered’? money – a large enough subject meriting a separate article).

Colin then brought us up to date on institutional developments in mediation in the United Kingdom and in Europe. There are a growing number of court-supported mediation schemes, whereby litigants are required to attempt mediation or risk losing their right to costs even if eventually successful in court (e.g. Dunnett v Railtrack). The Institute is one of a number of bodies providing accredited mediators to such schemes (CEDR is another). Dispute Resolution Services at the Institute is actively supporting mediation (thirteen out of eighteen schemes set up in the last two years incorporate mediation as well as arbitration). The Civil Mediation Council has recently been set up, comprising five providers of mediators (including the Institute), five independent members, and representatives of the Bar Council, Law Society and Department for Constitutional Affairs, as well as academics and others.

There are also developments in Europe (the Commission is preparing a Directive promoting mediation and setting guidelines for best practice) and in the UIA’s Forum of Mediation Centres (with links to the United Nations).

Finally Colin gave a few statistics to support his view that mediation was prospering whilst arbitration was declining. Between 2002 and 2003, Institute arbitration appointments declined (by 15% for consumer arbitrations and by 9% for commercial), whilst mediation appointments increased (by 47%). The number of Institute mediation appointments is still low compared to arbitration (if the consumer schemes are included), but in Colin’s view the trend is clear: mediation is the growth area of the future.

Report by Robin Orme

ADJUDICATION ENFORCEMENT APPLICATION
HHJ Anthony Thornton, assisted by Anna Laney and Sam Townend

17 February 2004

The evening represented the second and concluding part of the series on adjudication procedure, this being the all too familiar final act; the enforcement application. The stage was cleared of all minor actors; even the earlier leads, the adjudicator and the parties’ representatives, were banished to the audience. Instead, the spotlight fell on HHJ Anthony Thornton, of the Technology and Construction Court, playing his familiar role with the respective parties’ cases skilfully argued by Anna Laney of Tanfield Chambers and Sam Townend of Keating Chambers.

The audience already suspected that the decision was flawed. Neville Tait as the adjudicator in the previous episode almost boasted as such, presumably on the principle that even an Agatha Christie thriller would lack suspense if there was eventually found to be no body. The question was: how many bodies, or flaws in the decision were there, and would His Honour, as the detective, find them?

The application was for summary judgement for the enforcement of the adjudicator’?s decision by the referring party and was opposed by the responding party on the basis that the adjudicator exceeded his jurisdiction in his conduct of the adjudication. In particular:

The adjudication was entered into by the referring party against the wrong party and one who was not a party to the construction contract.

There was no contract in writing, or at least the terms of the contract leading to the decision were not in writing and were disputed.

There was an inordinate delay (4 years) from the reference to the decision.

The appeal followed its usual twists and turns of such actions with each point being argued in turn and the judgement being delivered at the end; a model of quick and efficient justice with the whole matter resolved in under two hours. It was a pity that it was only a demonstration. Especially impressive was the way that Judge Thornton summed up the arguments and give a lucid decision verbatim and without any notes.

"But, what happened?" you will be asking. Your reporter was all prepared to tell you. He dutifully took over eight pages of notes enabling him to set out each point as it developed only to be told at the end that a full transcript would be available by e-mail to all those that requested it. There didn’t seem much point in my continuing then, so, if you would like to find out what really happened, please e-mail the Branch Chairman (not me) and you will receive a transcript in due course. However, you will note that like all good theatre reviewers, I have not revealed the ending. Suffice to say that some of the bodies were not discovered. Perhaps they never existed.

Reported by James Mumford

THE IMPORTANCE OF BIAS
Stuart Kennedy

16 March 2004

Stuart Kennedy, Chartered Quantity Surveyor and Barrister of 3 Paper Buildings gave a talk to the branch on the increasingly important issue of bias. He started his talk with two amusing anecdotal stories from his work in representing clients facing criminal charges. He then moved on to the substance of his talk on bias in connection with arbitration and adjudication.

Stuart started by stating the rules of natural justice, namely that every party has a right to be heard and no one should be a judge in their own case. He went on to refer to the Human Rights Act and the provision that everyone is entitled to a fair trial, adding that it had been held that the Human Rights Act does not apply in adjudication.

Stuart then took us all back in time to the test in Crown v Gough where the test was a real danger of bias as opposed to the later test of a real likelihood of bias which was a higher test.

Stuart then took the audience through a number of cases including Locobail v Bayfield Industries, Porter v McGill and the Pinnochet case, concluding with the recent application in Taylor v Lawrence to show how the test for bias had been dealt with. Stuart then highlighted the Arbitration Act 1996, with particular emphasis on sections 1 and 33.

Towards the end of his talk, Stuart said that the Court of Appeal had considered the issue this year and clarified the test as being a "real possibility of bias by a fair minded person".

Reported by Harvey Mason