A behavioral analysis of construction dispute negotiation


Student thesis: Doctoral Thesis

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  • Tak Wing YIU


Awarding Institution
Award date15 Jul 2005


Inspired by the concern over the dispute epidemic within the construction industry, this research study sets out to examine the fundamentals of dispute management. It is well recognized that the best outcome for dispute resolution is a negotiated settlement. Moreover in construction dispute negotiation, the chance of reaching a settlement is often affected by the performance of the negotiators. Where the assistance of a third party neutral is required, the acts of the facilitator shall also be pivotal. The main objective of the research study is therefore to examine construction dispute negotiation from a behavioral perspective. To achieve this, the study was arranged in seven main stages: (1) The Conceptualization of Construction Disputes; (2) The Likelihood Assessment of Construction Disputes; (3) A Catastrophe Analysis of Dispute Management Approaches; (4) The Use of Support Tools for Construction Negotiation; (5) The Study of Negotiation Styles and Negotiation Outcomes; (6) The Study of Construction Mediation and (7) The Contingent Use of Mediator Tactics. The first stage of this research study attempts to enhance the understanding of construction disputes. This is achieved through consolidating previous research efforts on dispute studies. A framework to conceptualize construction disputes is developed. It is suggested that construction disputes are composed of three basic ingredients: Contract Provision, Triggering Event and Conflict. The completion of this conceptual framework facilitated the second stage of this research study, as it provides a convenient structure for the evaluation of likelihood of disputes in construction projects. A novel application of fault tree to model the three basic ingredients of construction disputes is presented. Fuzzy probabilities were employed in view of the nature of probabilistic assessment. Accordingly a Fuzzy Fault Tree Analysis (FFTA) was conducted based on a hypothetical project. The results indicated that the occurrence likelihood of construction dispute lies within the likelihood range of 0.997 to 1.000. This finding supports the views obtained from many qualitative studies that in complex construction project, disputes are inevitable. This suggests that construction professionals should be proactive in dispute management. Having an efficient dispute management approach is essential to prevent dispute from escalating. To manage construction dispute, it is believed that other than legal analysis, equal importance should also be aligned with the human factors. The role of human behavior, in particular, is an integral part of dispute management. Behavioral change is dynamically associated with the magnitude of conflict. This suggests that there exists a threshold of conflict level beyond which a sudden change in dispute management behavior will occur. The theoretical explanation of such behavior pattern can be examined by the use of catastrophe theory. Personality and Tensions were identified to have the highest fuzzy probability of occurrence, suggesting that these two variables have a significant implication on the conflict level. Therefore, behavioral flexibility and tension level were chosen as the normal and splitting factor respectively of the proposed catastrophe model on dispute management. The model was tested by the use of Cuspfit program. The results affirm that: (1) The appropriateness of the use of tension and behavioral flexibility as control variables; (2) The catastrophe model is a better fit to describe construction dispute management approach than the linear and logistic model; and (3) There exists a bimodal nature of dispute management approach. The model also suggests a sudden jump in conflict level will occur when tension reaches a threshold. Therefore, the conflict level should be controlled before the conflict level reaches its threshold. Due to the dynamic nature of conflict level, construction practitioners should develop their skills to avoid dispute and where disputes materialize, to resolve them amicably. The fact remains that construction dispute is always negotiated first before other methods are considered. Stage four of this research study examined the use of support tools in construction negotiation. The use of Even Swaps Method is introduced to provide a rational framework to evaluate the available options so as to enable informed choice to achieve compromises in construction negotiation. The extended use of this method by utilizing the power of the Internet was also explored. As such, negotiation platform called Construction Negotiation Online (CoNegO) was introduced. CoNegO employs SmartSettleTM program that embraces the Even Swaps Method for trade-off analysis. To illustrate the use of CoNegO, a hypothetical case between contractor and client is negotiated by two experts. The evaluations show that systematic prioritizing and making trade-offs can assist in the formulation of settlement package. Moreover, special training is required before this form of IT-based computing negotiation platform can be used. It is the negotiator who can settle a dispute, thus, negotiator’s habitual characteristic is critical to the negotiation outcome. Stage five of this research study examined the relationship between negotiation style and outcomes. The Rahim Organizational Conflict Inventory – II (ROCI-II) was employed to measure the five negotiating styles: integrating, obligating, avoiding, dominating and compromising. The authenticity of this instrument was tested with the technique of Principal Component Factor Analyses (PCFA). The result shows that ROCI-II appears to be a reliable and valid measure of negotiation styles of construction practitioners. Furthermore, as for negotiation outcomes, three functional (problem solving, collaboration and conflict reduction) and four dysfunctional (conflict escalation, relationship deterioration, inaction and further disagreement) were identified. The relationships between the negotiating styles and negotiation outcomes were investigated by the use of Multiple Regression Analyses (MRA). The results suggest that the use of obliging, dominating and avoiding styles appear to be less influential in achieving functional negotiation outcomes. Integrating style was found to be useful to achieve the functional negotiation outcomes and the use of comprising style is a practical approach in resolving dispute. These findings are supportive to the notion of contingent use of negotiating styles. This is an important finding as it points to the need to address the contextual factors, a premise on which the last two stages of work resides. The chance of settlement can be improved by having the service of a mediator if negotiation cannot bring a settlement. Due to the increasingly popularity of construction mediation, stage six of this research study was designed to deepen its understanding. With data provided by accredited mediators maintained on the list of construction mediators of the Hong Kong International Arbitration Center, taxonomies of three mediation dimensions: dispute sources, mediator tactics and mediation outcomes were developed by the use of PCFA. These results successfully reduced the number of variables to a manageable number for the final stage of this research study. Having identified the taxonomies of the three mediation dimensions, the final stage of this research study involved an empirical study on the contingent use of mediator tactics. Moderated Multiple Regression (MMR) was performed to detect the contingent effect of tactics on outcomes respective to the dispute sources. The finding suggested that not all of the dispute sources display a moderator effect. This in general supports the proposition that certain mediator tactics are more effective in dealing with certain dispute sources. Among the range of tactics within the toolkit of a mediator, Trust Building and Reality Test were found to be the most versatile. These results reaffirmed that disputes are problems that can be solved if the disputants are pragmatic and act sensibly. More significantly, the exercise of such approaches can only be possible in a trusting environment. These findings also add strength to the current endeavors in co-operative contracting such as partnering and strategic alliances.

    Research areas

  • Construction contracts