The Wragge & Co balloon debate

Nicola: So it may be that just a few of you out there don't know and haven't been to a balloon debate before. Well this hot air balloon has a very large hole in the balloon. There are four people in this balloon and the law of physics will tell you that only one of them can remain safely in the balloon and bring the balloon safely down to earth. You will decide who is jettisoned and who stays in the balloon. And the Wragge & Co variation on a theme is that we haven't got people in our balloon today, not real people anyway. We've got dispute resolution people; an arbitrator (Hilary Heilbron QC), an adjudicator (Paul Jensen), a judge or litigator (The Hon Justice Jackson) and a mediator (Andrew Manning-Cox).

Adjudicator: The most powerful person in this country who fills a judicial office is the adjudicator. There is no judge, no matter how high ranking, how eniment who can be seized of a dispute of a few million pounds and make a decision on the merits of the case within 21 days, but the adjudicator can. In the construction industry nobody trusts anybody and in the construction industry nobody pays anybody. A lot of would-be disputes, a lot of would-be waiting for payments is now being solved just because adjudication exists. It's necessary. It dispenses justice, not rough justice, justice. It does it cheaply and it dispenses justice now.

Mediator: Ladies and gentlemen, I am here to show you that mediation is a method of dispute resolution to be preferred to litigation, arbitration or adjudication. Well it's quick, it's cheap, it's informal and it's confidential. It's voluntary, but it's so effective that frankly I can see a political will to make it a compulsory first step to litigation in the not too distant future. It already is a compulsory first step in divorce property disputes. Mediation is a tremendously powerful tool ladies and gentlemen. In the words of one judge, "just use it". Vote mediation, thank you.

Arbitrator: Certainty is to the nature of the tribunal, a speedy, confidential, and cost efficient process, a clear and final result reached by a fair hearing, and the ability to enforce any result where there are assets, and arbitration can offer you all these things. It is only international arbitration that could possibly get you round the world to a final result, perhaps not in 80 days like David Niven, but in a much quicker time than any other method of dispute resolution suggested today, and moreover, land safely.

Judge/Litigator: Madam chairman, my fellow balloonists have made out my case. Sadly, it is clear from what they have said, that the judge or the litigator must remain aloft, whilst my fellow balloonists crash to the fashionable paving stones of Waterhouse Square below us. You can either have the one-stop service offered by the courts or the partial service offered by my learned fellow balloonists, and to be fair there are horses for courses and some disputes do benefit from the services of my fellow balloonists. But if push comes to shove, and sadly this afternoon push does come to shove, they get shoved and down they go.

Nicola: Right, so is it going to be the speed of the adjudicator, is it going to be the ballast of the mediator, the international coverage of the arbitrator or the one-stop shop?

Right, well in no particular order, as they say on all these reality shows the characters who are being sent home tonight, sent home by being thrown out of the balloon are... The adjudicator and the arbitrator.

You now have to convince all the audience here that you should be the one to remain in the balloon and bring it safely down to earth.

Mediator: So there are now just two of us in the basket. That key contract that's going dreadfully wrong can be nipped in the bud now. That problem nipped in the bud, resolved, the contract moves on. It was a CEDR survey in November of 2007 that says mediation actually saves UK business about a billion pounds a year. Since 1990 £23.5 billion pounds worth of cases have been mediated, 3700 mediations a year on average, a 73% settlement rate and much as I love the litigation process and as much as I respect the honourable judge today, he's the man who has to leave the basket in my respectful submission - thank you very much.

Judge/Litigator: Mr Manning-Cox told us earlier some horror stories about the big cases which were fought to judgment at great cost, but, those cases achieved a result. The huge costs or the substantial costs are only run up in that small minority of cases where the parties wish to go beyond case management and have a judicial decision and sometimes there are good reasons for that. Sometimes the parties want a decision on an exclusion clause, a decision on a contractual provision or whatever; a binding decision which will govern the parties dealings in the future. I have ordered hearings in private when it has been appropriate and I have ensured that judgments were anonymised so that confidentiality was preserved.

Nicola: Any burning questions?

Question 1: Andrew, are there any statistics about cases settling in mediation where mediation is a standalone process?

Mediator: I think 73% may be down to 69% next year but I do also believe that when parties have a framework, such as a mandatory contractual obligation to try mediation, I do think that helps resolve issues, and it also helps, I have to say, the courts, the IBM case for example, the courts are enforcing clear clauses that say you must mediate before you litigate.

Audience member: I wanted to say on behalf of the guests this is one of the most entertaining sessions on this topic I have ever come to and would like to congratulate Wragge & Co for organising it.

Nicola: That was not a planted question.

Question 2: Why is it that the courts therefore are promoting mediation so diligently at the moment, almost to the point that it is expected it might become almost compulsory?

Judge: We don't promote mediation to that extent, I quite often suggest mediation. I never drive them to it. I point out the advantages. If they wish to mediate I will build a mediation window into the timetable. If they don't wish to mediate, they want to get on with the litigation, they say look, there's is a real point of principle or a real battle here which we want you to decide judge, I get on and decide it. We're providing a service to the business community, it would be quite wrong to go beyond encouragement of mediation in appropriate cases to anything like compulsion.

Nicola: So, hands up for saving the mediator?

Hands up to those of you that would like to save the judge?

Right, not only does he get to bring the balloon down safely, but he also gets a large bottle of champagne to drink at the end of it. So the person you have voted, you the public have voted to keep in the balloon, to save today is the judge

Judge/Litigator: Thank you very much.