Mediators' View on Voluntary Construction Dispute Mediation

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Detail(s)

Original languageEnglish
Article number05023005
Journal / PublicationJournal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume16
Issue number1
Online published24 Oct 2023
Publication statusPublished - 1 Feb 2024

Abstract

Voluntary participation has been treated as a prerequisite for the use of mediation. It is believed that when disputing parties mediate at their own will, they will be more likely to undertake a bona fide negotiation whereby the prospect of reaching a settlement is enhanced. Thus, voluntary participation has been recognized as an indispensable design feature of mediation. For construction dispute resolution, the use of mediation has been promoted through stipulating its use in most dispute resolution clauses in standard forms of construction contracts. As such, the attempt of mediation is the condition precedent before a construction dispute can be referred to other adjudicatory forms of resolution such as arbitration. Similar arrangements have also been affected for cases reaching the construction court in Hong Kong. Effectively, the use of construction mediation is quasi-imposed. Moreover, it is noted that contracting parties are not on equal footing. The power asymmetry between them can arise due to their differentials in resources, information, and expectation. This study raised two incompatible conditions that may negate the utility of voluntary construction dispute mediation: quasi-imposition and power asymmetry. Through the study of eleven mediation cases, the projected negative impact of quasi-imposition and power asymmetry on voluntary participation was found to be insignificant. The flexible approach of mediation is found to be the most critical advantage in attracting potential users. There is no serious concern about quasi-imposition as long as the flexibility in managing the mediation proceeding is maintained. For asymmetric conditions, it is suggested that the expectations of parties deserve special attention. In this regard, mediators' skills and expert knowledge would prove instrumental in narrowing the expectation gap. © 2023 American Society of Civil Engineers.

Research Area(s)

  • Flexible proceeding, Power asymmetry, Quasi-imposition, Voluntary participation