Construction mediation in Scotland: an investigation into attitudes and experiences of mediation practitioners

Research output: Contribution to journalArticle

1 Citation (Scopus)

Abstract

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. This paper seeks to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Based on a modest sample, the survey results indicate a lack of awareness of the process within the construction industry, mediations were generally successful and success depended in large measure to the skills of the mediator and willingness by the parties to compromise. Conversely, 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. The research concludes that, in Scotland, mediation had not yet become the indispensable tool for those seeking to resolve construction disputes due to lack of support from disputing parties, their advisors and the judiciary.
LanguageEnglish
Pages101-122
Number of pages22
JournalInternational Journal of Law in the Built Environment
Volume8
Issue number2
DOIs
Publication statusPublished - 20 Jul 2016

Fingerprint

mediation
experience
lawyer
lack
construction industry
knowledge gap
judiciary
compromise
popularity
confidence
interaction
evaluation

Keywords

  • construction mediators
  • mediation
  • Scotland
  • qualitative analysis
  • quantitative analysis

Cite this

@article{c882b38e86954a929a9ff604890de60b,
title = "Construction mediation in Scotland: an investigation into attitudes and experiences of mediation practitioners",
abstract = "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. This paper seeks to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Based on a modest sample, the survey results indicate a lack of awareness of the process within the construction industry, mediations were generally successful and success depended in large measure to the skills of the mediator and willingness by the parties to compromise. Conversely, 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. The research concludes that, in Scotland, mediation had not yet become the indispensable tool for those seeking to resolve construction disputes due to lack of support from disputing parties, their advisors and the judiciary.",
keywords = "construction mediators, mediation, Scotland, qualitative analysis, quantitative analysis",
author = "Ian Trushell and Bryan Clark and Andrew Agapiou",
year = "2016",
month = "7",
day = "20",
doi = "10.1108/IJLBE-09-2015-0014",
language = "English",
volume = "8",
pages = "101--122",
journal = "International Journal of Law in the Built Environment",
issn = "1756-1450",
publisher = "Emerald Publishing Limited",
number = "2",

}

TY - JOUR

T1 - Construction mediation in Scotland

T2 - International Journal of Law in the Built Environment

AU - Trushell, Ian

AU - Clark, Bryan

AU - Agapiou, Andrew

PY - 2016/7/20

Y1 - 2016/7/20

N2 - 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. This paper seeks to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Based on a modest sample, the survey results indicate a lack of awareness of the process within the construction industry, mediations were generally successful and success depended in large measure to the skills of the mediator and willingness by the parties to compromise. Conversely, 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. The research concludes that, in Scotland, mediation had not yet become the indispensable tool for those seeking to resolve construction disputes due to lack of support from disputing parties, their advisors and the judiciary.

AB - 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. This paper seeks to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Based on a modest sample, the survey results indicate a lack of awareness of the process within the construction industry, mediations were generally successful and success depended in large measure to the skills of the mediator and willingness by the parties to compromise. Conversely, 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. The research concludes that, in Scotland, mediation had not yet become the indispensable tool for those seeking to resolve construction disputes due to lack of support from disputing parties, their advisors and the judiciary.

KW - construction mediators

KW - mediation

KW - Scotland

KW - qualitative analysis

KW - quantitative analysis

UR - http://www.emeraldinsight.com/journal/ijlbe

U2 - 10.1108/IJLBE-09-2015-0014

DO - 10.1108/IJLBE-09-2015-0014

M3 - Article

VL - 8

SP - 101

EP - 122

JO - International Journal of Law in the Built Environment

JF - International Journal of Law in the Built Environment

SN - 1756-1450

IS - 2

ER -