A Study of Bias in Construction Dispute Negotiation

Project: Research

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Description

Unfortunately, disputes are inevitable in construction contracting. In Hong Kong’s first ever industry review “Construct for Excellence”, published in January 2001, reducing nonproductive use of resources on dispute resolution was one of the key recommendations. Use of Alternative Dispute Resolution mechanisms, among other suggestions, is encouraged. Since this time, the Hong Kong Government has done considerable work to implement these recommendations, including, i) introducing voluntary mediation before trial via the 2009Civil Justice Reform; ii) incorporatingMed-Arb provisionin the Arbitration Ordinance (CAP 609) that came into force in June 2011; ii) proposing the enactment ofSecurity of Payment Legislation(SOPL) that incorporates statutory use of adjudication. Positive responses have been obtained from public consultation conducted in 2015; and iv) The newly enactedApology Ordinance(CAP 631) aims to protect parties making apology from being treated as admission of fault legally. This move is considered conducive in facilitating settlement in all resolution processes. These efforts collectively point out the very fact that substantial amount of dispute fail to settle through the well-recognised cost efficient resolution method- negotiation. Biases have been identified as a form of psychological barriers against settlement. The subject of bias in human judgement is not new. Even highly trained judges cannot claim their decisions are bias free (Diamond 2015). The effects of bias are mainly behavioural. The potential of having bias cannot be excluded for construction dispute resolution practitioners. Bias in construction dispute negotiation is a largely uncharted research area. The proposed study aims to fill this gap. The primary objective of the project is to study bias in construction dispute negotiation.The operating objectives of the project therefore include: i) To conceptualize bias in construction dispute negotiation; ii) To develop a validated bias identification inventory; iii) To examine the potency of bias in construction dispute negotiation; iv) To develop bias minimizing measures for construction dispute negotiation and other resolution processes; and v) To share findings with the construction community.These five operating objectives shall be fulfilled through five stages of work respectively. In stage one, conceptualisation of bias in construction dispute negotiation shall be carried out. Through desktop analysis, focus group discussion with construction dispute resolution experts, a conceptual framework outlining the interrelation among bias types with their respective sources and artefacts shall be formulated. In stage two, the bias framework in construction dispute negotiation shall be developed into a bias identification inventory. The inventory is instrumental to test the existence or otherwise of bias in construction dispute negotiation - the goal of stage three. An experiment simulating typical contract dispute resolution procedures and incorporating bias triggers found from the study will be devised. Construction dispute resolution practitioners will be the invited subjects. The decisions of the subjects will be recorded and analysed to detect bias exhibitors. Follow-up interviews will then be conducted with those showing a presence of bias and those with no bias. Discourse analysis shall be applied to identify the bias types that are of high potency. Bias minimizing measures/arrangements will be developed in stage four with the advice from dispute resolution experts. Implications on dispute resolution process design will also be sought. The study shall be concluded through dissemination of findings with the construction communities in journal publications, conference and industry seminar presentations. The Society of Construction Law Hong Kong (SCLHK) that has over 300 members of dispute resolution experts comprising senior construction professionals, lawyers and senior counsels has endorsed the importance of the proposed study. The SCLHK will act as a supporting and participating organisation for the project. The participation of the SCLHK ensures the access to experts for advice, suggestions and data for the study. The project deliverables shall make contribution in policy, academic, industrial and education terms.

Detail(s)

Project number9042650
Grant typeGRF
StatusActive
Effective start/end date1/10/18 → …