From right to interest : specialised facilitative mediation (construction)
釋權取利 : 專業化促進式調解(建築業)
Student thesis: Doctoral Thesis
Related Research Unit(s)
The thesis aims to search for an ideal dispute resolution model that is sufficiently small, practicable, effective and is capable to resolve complicate, specialised disputes such as construction ones among the simple and general ones with the deliverance of satisfactory1 settlement to the parties. The research is founded on the prevalent legal and market practice frameworks for immediate compatibility, useability and practically. It attempts to construct a customised or specialised dispute resolution process model that is compatible with the specialised nature and sophisticated demand of a particularly selected category of dispute and disputants - construction disputes. Prevalent market practice frameworks will be critically reviewed following the principle of market autonomy for development and self-regulation under the common law regime, and the party autonomy and freedom to contract. In establishing the criteria for the "prevalent best", the research traverses between cultures and practices locally and overseas, into histories and shifts of needs and values, theoretical definitions and practical objectives, advantages and shortcomings of various practices and theoretic models. It is found that such criteria for dispute resolution in particular vests on human perception and conception of satisfaction, a subjective and personal conclusion based upon the objective security of preferred interests. Setting aside theological discussions, the standard of what can and cannot be secured are closely related to the dualities of right-based2 governance and interest-based3 jurisprudences, the subjective and objective realities, practical submissions and the should-bes. Apart from various factors and forces that determine the criteria of success in dispute resolution, analysis results indicate the co-existence and the dynamic shifts of balances of an interacting trio of:- (a) the nature and demands of the disputes and disputants requiring compatible dispute resolution process, generally and specifically; (b) the provisions and limitations of the prevalent dispute resolution processes so far developed and served by professionals under various forces of control; and (c) the quality of service providers which in term limits the service and product received by the disputes and the disputants. Resolution of disputes, which falls under the ambit of market and individual's autonomy rather than its legally bound by law or governance, reveals, in turn, the utmost solidarity of the society, a particular industry or group (Wolaver, Carlston, Auerbach). This is especially the case when the decision and effect of further investment for the employment of third neutral deciding tribunal or assisting party(ies) of, many a time, unfamiliar performance (the process and the service providers) on civil cases, belongs to the parties. Hence, it is always the call of the parties to set their own target and process as also being granted under the principle of autonomy in the settlement of disputes though the way the market is practicing is quite the opposite, leading to serious jeopardy of faith and confidence in particularly the construction industry on the positive use of dispute resolution processes. In objectively defining the basis for more ideal or satisfactory result in dispute resolution and, hence, the design of the ideal dispute resolution process and the competence of the service providers, by natural deduction, interest-based approach has higher inherent potential to meet up with the fundamental human needs in an expanded, extended, and wholesome manner rather than the restricted and partial right-based frameworks. In the same token, how alternative dispute resolution (ADR) is to be developed and self-regulated to the market's best interests belongs to the market and respective industries instead of any single, top-down government backed organisation. It is only under a pluralistic framework that the market's need for ADR processes' flexibility and versatility can be customised to suit the special and peculiar needs and demands of each sector and industry through institutionalisation and professionalisation before ADR can become truly useful serving its purpose to the satisfaction of the market and the parties. This includes the design of the various ADR processes, compatible competence of the dispute resolution professionals, and the way the disputes are to be determined in cases by the deciding party (ies). In Hong Kong, the primary right-based and interest-based ADR are respectively arbitration and mediation, which have found roots under different settings and are gaining impetus since 20104. The government's intention on the territorial development for broad application on the use of arbitration and mediation amidst other ADRs is definite. The market responses quickly and amply. The imminent issue prevails as to where the government support should be placed upon the autonomous development of the market whereby a healthy and sustainable substantive growth of ADR acceptable to the market as pertinently useful, practical and practicable dispute resolution mechanisms can be promoted. Civil dispute resolution regards private interests, individually and collectively. To search for an ideal ADR model, both the starting point and destination must vest upon the interests of the parties and the industry as a whole. Taking construction disputes as based model, the thesis investigates, consolidates and devises in depth to conclude with a detailed worked-out practicable dispute resolution model under the premises of interest-based Specialised Facilitative Mediation (SFM) in the attempt to meet up with the demand where both the currnet legal and ADR practices leave out. It strives to rescue as much of the remaining interests of the disputing parties in cases, with the fuller exercise of party autonomy and proactive participation of competent, ethically coded, interest-based SFM Mediators' technical knowledge and sklls in assistance to the parties' self-decision through amicable, assisted negotiation in order to reach satisfactory, consensual settlement instead of unwitting resort to the right-based fora. In summary, the thesis reveals the epoch at all levels, from human nature to governance, theories to market demands, legal frameworks to professionalism, that the next era for sustainable and healthy development on effective, efficiency and satisfactory delivery in dispute resolution must be made toward the interestbased mediation with specialisation toward different needs and demands of the dispute and the disputants under the premises of Specialised Facilitative Mediation.
- China, Construction contracts, Dispute resolution (Law), Hong Kong, Mediation