An investigation into the different styles of the lawyer and construction specialist when mediating construction disputes

AuthorRay Wall, Nii Ankrah, Jennifer Charlson
PositionSchool of Architecture and Built Environment, University of Wolverhampton, Wolverhampton, UK
Pages137-160
An investigation into the
different styles of the lawyer
and construction specialist when
mediating construction disputes
Ray Wall, Nii Ankrah and Jennifer Charlson
School of Architecture and Built Environment,
University of Wolverhampton, Wolverhampton, UK
Abstract
Purpose – The purpose of this paper is to assess the views and experiences of mediators from different
professional backgrounds practising in the construction industry. Previous research shows that the
legal profession dominates construction mediation in both England and Wales.
Design/methodology/approach – The phenomenological approach was used to capture the lived
experiences of the interviewees and gain insight into their views and practices. The data collection was
by semi-structured interviews. The data was then analysed using software to establish themes.
Findings – The major difference in mediator practice discovered between the two groups is the use of
the evaluative style by lawyer and facilitative style by non-lawyer mediators. Non-lawyer mediators
strongly reported their criticisms of the evaluative style in mediation suggesting that it undermines the
parties’ ability to self-determine their own dispute and reduces the level of satisfaction experienced by
the parties in the process of mediation. Lawyer mediators supported the use of the evaluative style as an
acceptable compromise on the parties’ self-determination and feelings of satisfaction in pursuit of
achieving the goal of a settlement in mediation, which was signicantly better than the escalation of
stress and costs to the parties in the event that the dispute escalates to litigation. In addition, mandatory
mediation, the role of advisors/advocates, governance and the future of mediation were explored.
Originality/value – The research is anticipated to be of particular benet to parties considering
referring a construction dispute to mediation.
Keywords Construction, Self-determination, Evaluative, Facilitative, Lawyer, Mediation style
Paper type Research paper
1. Introduction
The inspiration for this research was the ndings of the empirical analysis undertaken
by Agapiou and Clark (2012,2013) regarding Scottish construction mediation. Their
study highlighted that Scottish contractors and sub-contractors held a strong preference
for mediators with specialist construction industry experience. This view is supported
by Brooker (2011) who states that knowledge and awareness of construction industry
practice is critically important for resolving disputes in mediation.
The legal profession dominates construction mediation in both England and Wales
with lawyers either as mediators or as advisors representing their clients (Gould, 2009;
Brooker, 2007,2011). The review undertaken by the Technology and Construction Court
(TCC) showed that, 41 per cent of mediations were undertaken by solicitors, 34 per cent
by Barristers, 7 per cent by judges and only 7 per cent by other construction
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1756-1450.htm
Mediating
construction
disputes
137
Received 26 January 2015
Revised 21 April 2015
Accepted 22 April 2015
InternationalJournal of Law in the
BuiltEnvironment
Vol.8 No. 2, 2016
pp.137-160
©Emerald Group Publishing Limited
1756-1450
DOI 10.1108/IJLBE-01-2015-0002
professionals (Gould et al., 2010). The Centre for Effective Dispute Resolution (CEDR) in
their audit undertaken in 2010 also highlighted that over 80 per cent of practising
mediators in England and Wales come from a legal background (Gould et al., 2010).
Burns (2013) argues that the construction specialist will be quick to appreciate what
the parties really want and will not focus wholly on entitlement in moving matters
towards a settlement, whereas lawyers are experienced in focusing on parties’
entitlement which in mediation potentially creates a situation of polarisation.
There is growing concern regarding the dominant use of the evaluative style in the
mediation of construction disputes in preference to the facilitative style specically in
the USA (Alexander, 2006). Gould (2009) highlights the dramatic growth in the
popularity of the evaluative style in England and Wales. Brooker (2007) suggests the
reason underpinning the increased use in the evaluative style is associated with the high
number of mediators practising with a background in law. Menkel-Meadow (1995)
suggests that the increased pressure to achieve a settlement outcome on the same day of
the mediation (achieve targets) is inuencing mediators to adopt the evaluative style in
favour over the facilitative style (Golann, 2000;Mulcahy, 2001).
An additional concern regarding the increased use of the evaluative style by
mediators is the parties having less control over their mediation (Nolan-Hayley,
1998;McDermott and Obar, 2004). This view is further supported by ndings in
both Canada and the USA where Lowry (2000) highlights that the evaluative style is
signicantly reducing the parties control with lawyers converting disputes into
legal arguments (Lande, 1997;Hart, 1992). Findings in the study undertaken by
Clark (2009) into Scottish lawyers’ views on mediation reect similar concerns
regarding the reduction in the parties’ ability to self-determine their own dispute.
However, the increased use of the evaluative style in England and Wales has been
highlighted by Genn (1998,2009) as being a signicant factor for generating higher
numbers of settlement in mediation.
Despite the signicant increases in the rate of settlement at mediation, parties are
reporting that the use of the evaluative style is failing to provide feelings associated with
satisfaction in the process (Genn, 1998,2009). Negative feelings have been associated
with the loss in the parties’ ability to self-determine their own dispute (Nolan-Hayley,
2002). Agapiou and Clark (2013) report that it is the client who makes the settlement
formally, but in practice, the decision tends to be driven by the advice of the lawyers,
particularly with construction disputes.
There exists a growing body of evidence suggesting that the construction
industry is undergoing signicant change with its clients seeking commercial
solutions to their disputes without the use of traditional aggressive and adversarial
strategies (Burns, 2013). However, should mediations of the future continue to be
dominated by members of the legal profession? Does the style of the construction
specialist mediator lead to more satisfying settlements? It is to address these critical
questions that this research is being undertaken into construction mediation in
England and Wales.
2. Literature review
2.1 Mediation of construction disputes in England and Wales
In March 1994, the Lord Chancellor set up an enquiry headed by Lord Woolf to review
the Civil Justice System (CJS) in the United Kingdom. Lord Woolf in his report “Access
IJLBE
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