A study on the effectiveness of different mediation approaches in resolving construction disputes

Abstract

In a construction project, a wide range of parties with their own expertise work together towards a common goal – the timely completion of the construction project. However, as each party often has their own interests in mind, compound with the complex nature of construction projects, conflicts are bound to happen between parties. If these conflicts are not well-managed, they become disputes and thus require a resolution. Traditional methods of resolution usually mean taking the case to the court, and letting a judge decide a winner and loser in the case based on hard facts and evidence. While the dispute can be effectively resolved, the time and monetary cost in a litigation, as well as the severance of business relationship can be damaging to companies in the construction industry. For that reason, alternative dispute resolutions (ADR) are there to fill the void between disputes and litigation. Mediation is a form of ADR, and can help parties resolve disputes in a less winor- lose situation, and a much more friendly manner. In this study, mediation will be in the spotlight, being investigated to help understand more about mediation models, and their respective strengths and weaknesses based on the opinions and experience shared by accredited mediators who have been practicing for a long time. This study looks at different literature pertaining to mediation and mediation approaches, namely facilitative mediation, evaluative mediation, transformative mediation and mediationarbitration. The legal framework that governs these procedures are also looked into. After careful review of various publications, the different models will be compared and contrasted with experiences and insights of mediators who have been using these models in real world cases. Through an online questionnaire, accredited mediators are invited to give share their experience and insight into the mediation industry. Including data that cannot be easily obtained from literature review or the Internet, mediators share their thought process behind picking a mediation model when going into a case, their definition of success in mediation, their usual practice when mediating construction dispute cases, and so on. This information has been very helpful to this study when looking into the different models of mediation. The hypothesis of this study is whether hybrid processes like med-arb can better resolve disputes than stand-alone mediation. The hypothesis of this study, while not tested false, is not completely true, either. The details of which can be further studies in Chapter 5 of this dissertation. In short, med-arb can be very effective in mediating for cross-border disputes. And that the other mediation approaches can suffice in the local scale. The study also concluded that mediation models should not be looked at distinctly from one another, instead, mixing and combining the approaches may yield better results for construction disputes. This research aims to provide guidance to inexperienced disputants as well as mediators, but especially disputants, when picking a mediation approach that would suit their needs and preference. As the research points out, party’s preference and willingness in a mediation can determine the approach by the mediator as well as the course of the process due to the high flexibility of mediation. Therefore, educating and equipping disputants with the proper knowledge is essential to the success of their mediation process. This will hence help them avoid the time-consuming and costly litigation proceedings.