The development of IT dispute mediation in the UK needs to be seen in the context of UK civil-commercial mediation practice generally.
We refer specifically to the civil-commercial field, because mediation practice has developed in different ways in the UK in the different fields in which it operates: family mediation especially on separation and divorce; civil-commercial mediation; neighbourhood and community mediation; reparation and mediation in the criminal justice system giving rise to restorative justice; labour/employment mediation; environmental mediation processes; and various sub-sets including for example peer mediation in schools, elder mediation, small claims and telephone-based mediation.
Huge strides have been made in bringing civil and commercial mediation into the mainstream of dispute resolution practice since it was introduced in the late 1980s. Civil Procedure Rules, pre-action protocols (prescribed steps that parties wishing to litigate must take) and practice directions all contain provisions promoting or requiring the use of mediation or other Alternative Dispute Resolution (ADR) processes. Court guides recognise the merits of mediation, and many judges, including those in the Technology and Construction Court (TCC), a division of the High Court, commonly adjourn cases to enable – and often require – the parties to enter into mediation.
Case law, depending on the status of the court, has a binding or influential effect and has increasingly moved towards the promotion of mediation. A number of judgments have established the principle that parties who fail to mediate in cases where it is appropriate to do so (and guidelines for this have been laid down) may be penalised by having costs awarded against them. The whole issue of costs is the subject of active debate following a major review by a senior judge.
The TCC’s attitude is particularly relevant because the court’s specialist functions cover construction, engineering and IT disputes. Not only does the TCC support mediation, but it actually introduced its own Settlement Process, initially as a pilot project in 2006, whereby judges would use a mediation-type process to help parties reach settlement. Specialist solicitors and barristers working in the TCC, and hence those specialising in IT disputes, have formed associations – the Technology and Construction Solicitors’ Association (“TeCSA”) and the Technology and Construction Bar Association (“TECBAR”) – which are committed to supporting the use of mediation.
Having a specialist IT group of lawyers whose organisation has expressed its support for mediation is very helpful in getting IT disputes into the mediation forum, since clearly the lawyers are the gatekeepers of mediation work…