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A Talk Presented By His Honour Judge Anthony Thornton QC in Regard to Judge-led mediation and other TCC Developments in ADR Support - 11th March, 2008.

Following the Twenty Fifth Annual General Meeting of the South East Branch on Tuesday 11th March, 2008 I had the pleasure of attending the aforementioned talk.

I would like to take this opportunity to share some of the thought provoking content of the talk with readers as it was most interesting. Due to time and space constraints I have had to necessarily limit this to selected matters only and I would apologise to the speaker for having to do so.

His Honour Judge Anthony Thornton QC took us on a journey relaying his experience and thoughts in particular regard to the last few years. He commented that since the introduction of The Arbitration Act 1996 and The Housing Grants Construction and Regeneration Act 1996 we have seen significant developments in regard to dispute resolution in construction and that these developments, at least for the most part have been positive. However, his general thoughts are that there is now a period of retrenchment and that in a number of areas the dust is beginning to settle. For the purposes of example, he stated that many of the challenges that arise from adjudication have now been well tested. The TCC has. as we are all aware. played a significant part in this regard.

He went on to say that in his view 'Adjudication has been a great success' and whilst in general I would agree, he further made the comment that adjudication has added to the development of the professionalism, integrity and skill of those involved in the process. I think that in general terms the professionals involved have adapted well to the statutory process of adjudication, I for one have learnt from my involvement. I would however still comment that I have quality issues cited to me in respect of party representatives and occasionally adjudicators.

A further statement from the speaker was thought provoking 'I hope that adjudication will develop into other fields outside of construction as it is effective…' As a construction dispute resolution professional I had not really thought about this, but I could foresee how this would work and the benefits that could develop. I cannot help but observe that it would have been tested on construction. A further observation noted by the speaker was that adjudication is still a relatively cheap form of dispute resolution, 'although there are some worrying trends developing'. This is a discussion topic in its own right. Although, I suggest that many would agree with the statement made.

The Judge went on to talk about his experiences in Judge-led mediation which was enlightening. He recounted the objections which were cited with regards to judges acting as mediators. He advised that he had been mediator in 17 such mediations with the largest concerning 7 million pounds but with others of significantly lesser value. He did not share the success rate with the audience, but if I had to guess I would suggest that his success rate is high. Further, it was observed that of the TCC judges he undertakes the most judge led mediations.

Of note was the fact that the Judge indicated that his training in mediation was not as formal as for example the CEDR mediation training. Whilst some training is undertaken the Judge considered he owed more to his experience and particularly that of being a Counsellor for Child Line.

It was useful to hear the views of a Judge from the TCC on this particular mediation approach and of ADR generally, given the developments of the recent past.

In closing I found this an interesting talk and I regret that I can only cite selected subject areas. The Judge was thanked for his attendance and I will certainly look forward to further talks presented by him in the future.

Report by Kevin Trash

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