Trushell, I; Clark, B and Agapiou, A (2016) Construction mediation in Scotland: An investigation into attitudes and experiences of mediation practitioners. International Journal of Law in the Built Environment, 8(2), pp. 101-122. ISSN 1756-1450
Abstract
Purpose This paper aims to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Recent research on construction mediation in Scotland has focused exclusively on construction lawyers' and contractors' interaction with the process, without reference to the views of mediators themselves. Design/methodology/approach The entire research design of this research was constrained by the small population of practising Scottish construction mediators (thought to be circa. 20 in 2013). The design encompassed a literature search, participant interviews, questionnaire survey and qualitative and quantitative data. The research questionnaire was designed to capture data related to the biography, training and experience of those interviewed before their opinion on the benefits of, and problems with, mediation were sought. Findings The results indicate that mediations failed because of ignorance, intransigence and over-confidence of the parties. Barriers to greater use of mediation in construction disputes were identified as the lack of skilled, experienced mediators, the continued popularity of adjudication and both lawyer and party resistance. Notwithstanding the English experience, Scottish mediators gave little support for mandating disputants to mediate before proceeding with court action. A surprising number were willing to give an evaluation of the dispute rather than merely facilitating a settlement. Originality/value There are few experienced construction mediators in Scotland, and the continued popularity of statutory adjudication is a significant barrier. Mediators believe that clients' negative perceptions of mediation are a bigger barrier than lawyers' perceptions. The mediators wanted judicial encouragement for mediation backed by some legislative support, mediation clauses incorporated into construction contracts and government adoption of mediation as the default process in its own contracts.
| Item Type: | Article |
|---|---|
| Uncontrolled Keywords: | perceptions; scotland; qualitative analysis; mediation; construction mediators; quantitative analysis |
| Index terms: | adjudication, mediator, statutory adjudication, dispute, research design, encouragement, Scotland, investigation, construction contract, interaction, construction dispute, interview, default, mediation, construction mediator, survey, lawyer, methodology, population, practitioner, qualitative analysis, questionnaire, quantitative analysis |
| Subjects: | management, research methods, Geography, demography, behavioral psychology, data collection methods, profession, contract type, research design and methodology, dispute resolution, practitioner, data analysis and analytics, legal systems |
| Topics: | Legal Issues, Urban Studies, Human Resources, Roles and Professions, Procurement, Research Practice, Geographical Context |
| Descriptive scope: | 5 PCTEA |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here