A Study of Bias in Construction Dispute Resolution


Student thesis: Doctoral Thesis

View graph of relations



Awarding Institution
Award date18 Jul 2019


Disputes have been identified as the inevitable happening in highly competitive construction contracting business. Alternative dispute resolution (ADR) methods are widely used because it is believed that ADR would offer speedy and less costly resolution. In this regard, multi-tiered dispute resolution (MTDR) process incorporating ADR has become the design protocol of contractual dispute resolution arrangements. Moreover, the use of MTDR does not guarantee amicable dispute settlement. Instead, repeated evaluations therein may invite cognitive bias. This study aims to conceptualize biases in construction dispute resolution.

Are construction disputing parties rational as assumed in most negotiation studies? Do biases affect their decisions? If biases do exist, what are the underlying constructs of biased behaviors? How to minimize the effect of bias in construction dispute resolution? These questions were discussed in this study. The First Stage of the study conceptualized bias by examining the underlying constructs of biased behaviors. Four types of bias—preconception, self-affirmation, optimism and interest-oriented—were included in the bias framework proposed. First Stage of this study informs that the existence of bias in construction dispute resolution is real and this formed the foundation of the subsequent stages of study. Detecting the presence of bias is the first step for bias minimization. For this reason, a time-consistent bias measurement scale (the Scale hereafter) was thus developed in the Second Stage of this study. The Scale informs the potential bias sources and their respective relative strengths. In Stage Three of the study, biases in construction dispute resolution were examined from the perspective of third-party neutrals. This approach improves the objectivity of the data on disputing parties’ biased behaviors. The third-party neutral respondents observed the same four types of bias. Interest-oriented bias is the most notable. Besides, in this stage bias minimizing approaches were summarized from relevant literature. The usefulness of the bias minimizing measures was validated by experienced dispute management experts. Going beyond the convention of employing a singular approach, the Fourth Stage of the study augments the robustness of bias conceptualization through triangulation whereby data from three perspectives were compared: i) self-reflection of disputants; ii) observations of dispute resolution third-party neutrals; and iii) self-realization of disputants in a dispute resolution simulation. The employment of triangulation enhances the credibility and reliability of bias conceptualization. Biased decisions would hinder amicable settlement, bias minimizing strategies are necessary to enhance the efficiency of construction dispute management. The Fifth Stage of the study explored the practical implications of the bias minimizing measures. It is proposed that use of independent advisor would be advisable as in mediation. This stage of the study incorporated bias minimizing arrangements in mediator’s tactic of reality testing. Seventeen reality testing questions embracing bias minimizing elements were proposed. The usefulness of these reality testing questions was validated by experienced third-party neutrals of substantial credentials.

Bias is almost an uncharted area in construction dispute resolution. The issue of bias is further exemplified in the common use of multi-tiered dispute resolution arrangement in construction contracts. The study fills this research gap by conceptualizing the underlying constructs of biased behaviors. This study also contributes to construction dispute management practice by suggesting practical bias minimizing arrangements. Hence, the findings in this study have both theoretical and practical applications in construction management in general and construction dispute resolution in particular.