Alternative dispute resolution in Palestine: the myth and dilemma of construction mediation

• Author: Haytham Besaiso, Peter Fenn, Margaret Emsley
• Position: School of Mechanical, Aerospace, and Civil Engineering, University of Manchester, Manchester, UK
• Pages: 269-286

Alternative dispute resolution in

Palestine: the myth and dilemma

of construction mediation

Haytham Besaiso, Peter Fenn and Margaret Emsley

School of Mechanical, Aerospace, and Civil Engineering,

University of Manchester, Manchester, UK

Abstract

Purpose – This paper aims to investigate the use of alternative dispute resolution (ADR) techniques in

the Palestinian construction industry. It also seeks to identify some of the drivers and barriers to the

greater use of particular ADR techniques.

Design/methodology/approach – In this study, 12 semi-structured in-depth interviews were

conducted with senior ADR practitioners comprising nine construction professionals, two eminent

lawyers and a retired judge.

Findings – This research has explored the practices of mediation, adjudication and expert evaluation

in the Palestinian construction industry and has identied deciencies in implementation and the roles

that the cultural and legal contexts play in this. The research ndings cast some doubt on the results of

previous studies asserting the widespread use of construction mediation.

Originality/value – This paper contributes to knowledge by bringing new insight into the practice of

particular ADR techniques in the Palestinian construction industry and in identifying challenges to the

more widespread adoption of these ADR techniques. This paper exposes the myth of the popularity of

construction mediation and the dilemma to the use of mediation brought by the social construction and

conceptualisation of the mediator’s role.

Keywords Adjudication, Construction disputes, Dispute resolution, Expert evaluation, Mediation,

Palestine, OPT

Paper type Research paper

1. Introduction

The construction industry in the Occupied Palestinian Territories (OPT ⫽West Bank and

Gaza) is a signicant contributor to the economy and a major employer of the workforce

(PCBS, 2016). Hence, it is imperative to deliver maximum value and to minimise all

disruptions, distractions and damages that result from unpleasant disputes. There is

evidence, based on an impressionistic survey of construction contractors, that construction

disputes have been rising in the last years (Abu Rass, 2006). This may be a normal outcome

of increasing construction volumes, in addition to other reasons. Some studies have

investigated the sources of disputes (Enshassi et al., 2009a;Abedmousa, 2008;Dmaidi et al.,

2013) and the mainstream dispute resolution methods in the OPT (Jbara, 2012;Saqfelhait,

2012;Abu Rass, 2006;Abu Eed, 2012). These studies primarily used quantitative

approaches for data collection and analysis to provide descriptive statistics on the market

share of dispute resolution methods and the parties’ satisfaction with the arbitration

procedure. Understanding the parties’ preferences is commendable indeed and leads to

better and informed decision-making by the stewards of the dispute resolution process

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Alternative

dispute

resolution

269

Received 25 December 2015

Accepted 19 August 2016

InternationalJournal of Law in the

BuiltEnvironment

Vol.8 No. 3, 2016

pp.269-286

©Emerald Group Publishing Limited

1756-1450

DOI 10.1108/IJLBE-12-2015-0021

(alternative dispute resolution [ADR] institutions and dispute resolvers). However, the

quantitative methods used in the studies leave many questions unanswered. Therefore, this

research uses a qualitative approach to look beyond simple satisfaction and preferences

surveys to seek out an empirical understanding of the construction dispute resolution

practices and the role various dispute resolution instruments play in the settlement of

construction disputes. This approach provides a level of understanding that is deeper than

that which is typically obtained from surveys.

2. Methodology

This research adopts analytical, comparative and inductive data processing methods

within a qualitative framework. The analytical approach is featured in a thorough

critical literature review of the key sources of disputes, the dispute resolution methods in

use and the socio-cultural context of construction business in the OPT. It also extends to

the thematic and narrative analysis techniques used in the analysis of the interviews.

This study relies heavily on the results of 12 semi-structured interviews conducted with

ADR practitioners in the OPT (West Bank and Gaza). The comparative approach is

manifested in the data-to-data comparison and the data-to-literature comparison to

examine and synthesise unstructured data and link data to theory. Finally, this research

serves the objectives of inductive inference through developing general rules derived

from the collection of detailed information.

3. Literature review

3.1 Industry’s pathogens

The extant literature refers to the sources of claims and disputes (Enshassi et al., 2009a;

Abedmousa, 2008;Dmaidi et al., 2013), risks (Enshassi et al., 2008), events leading to project

failure (Enshassi et al., 2006), contract termination (El Karriri et al., 2011) and inadequate

performance (Enshassi et al., 2009b). Although the titles of these studies are different, they

mostly share the same ndings. The authors, hereunder, synthesise all these factors and

re-introduce them as the “industry’s pathogens” to mean those events that may lead to

project failure to achieve the expected cost, time or quality, contract termination or

unpleasant disputes. These problems can be categorised into two main categories; external

environment macro-level factors and internal environment micro-level factors.

The construction industry in the OPT is as good as or as bad as the political

atmosphere. The fragility of the industry is directly related to the highly volatile and

unstable political environment and uncertain economic climate. Dramatic and frequent

events such as border closures, blockade and hostilities make this industry very

susceptible to signicant risks. These risks result in a shortage or unavailability of

construction materials and plant or delays in material and equipment delivery. This

brings higher risks of project delays or suspensions and, consequentially, additional

expenses and a prolonged exposure to the risks of currency exchange rate uctuation

and material price escalation. Under these circumstances, it is no surprise that the

number of disputes and claims in the Palestinian construction industry continues to

increase (El-Sawalhi and El-Riyati, 2015;Enshassi et al., 2009a), and that many

contractors have gone out of business (Abu Eed, 2012;El Karriri et al., 2011;Abu Rass,

2006) because of increasing costs and shrinking prot margins.

The internal environment of projects, that tends to be within the control of project

stakeholders, has its own endemic pandemics such as the dominance of the lowest bid

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