Construction mediation in Scotland. An investigation into attitudes and experiences of mediation practitioners

• Author: Ian Trushell, Bryan Clark, Andrew Agapiou
• Position: School of Engineering and Built Environment, Glasgow Caledonian University, Glasgow, UK
• Pages: 101-122

Construction mediation

in Scotland

An investigation into attitudes and

experiences of mediation practitioners

Ian Trushell

School of Engineering and Built Environment,

Glasgow Caledonian University, Glasgow, UK

Bryan Clark

Law School, University of Strathclyde, Glasgow, UK, and

Andrew Agapiou

Department of Architecture, Strathclyde University, Glasgow, UK

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 benets

of, and problems with, mediation were sought.

Findings – The results indicate that mediations failed because of ignorance, intransigence and

over-condence of the parties. Barriers to greater use of mediation in construction disputes were

identied 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 signicant 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.

Keywords Perceptions, Scotland, Qualitative analysis, Mediation, Construction mediators,

Quantitative analysis

Paper type Research paper

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1756-1450.htm

Construction

mediation

101

Received 16 September 2015

Revised 5 December 2015

Accepted 1 February 2016

InternationalJournal of Law in the

BuiltEnvironment

Vol.8 No. 2, 2016

pp.101-122

©Emerald Group Publishing Limited

1756-1450

DOI 10.1108/IJLBE-09-2015-0014

Introduction

The construction process is extremely complex, even for a small project. It involves the

construction of a unique, high value, capital project in the open air. It requires input from

various designers, such as architects, engineers and quantity surveyors, and a myriad of

trades-people coordinated by a main contractor, who is effectively a manager of the

process due to the universal practice of sub-contracting all trades. This complex process

creates a huge number of interfaces which inevitably creates friction, which in turn

causes disputes. The friction is exacerbated by a “macho” culture within the

construction industry which is still male dominated and aggressive (Brooker and

Wilkinson, 2010).

Most construction disputes are about money, i.e. the contractor believes he is entitled

to more money than the employer is willing to pay. In a perfect world, a construction

project would commence with an employer who knew exactly what he wanted, a design

team that translated these requirements into precise drawings, specications, schedules

and bills of quantities, all of which were issued to competent, adequately resourced

builders who submitted realistic tenders leading to the appointment of the lowest

tenderer in the traditional procurement method. Thereafter, there would be no changes,

and the builder would simply construct the works in accordance with the contract

documents and the nal account would be the same as the tender price. No such project

has ever been, or will ever be, accomplished. The one certainty in construction is the

change, and it is the change which causes conict.

Traditionally, arbitration was considered a popular alternative to litigation, and the

industry recognized it initially to be an inexpensive, efcient, prompt, private and

informal “dispute resolution” process within which decisions were made by experienced

industry professionals. The process was claimed to be quicker and cheaper than

litigation, condential and the arbitrator’s award was nal and binding on the parties

with virtually no grounds of appeal to the courts. In reality, arbitration was slow and

expensive with written pleadings, long periods of adjustment before a closed record was

produced, legal debates and proof hearings which lasted for weeks (Davidson, 2000).

Following recommendations in the Latham Report[1], the Housing Grants,

Construction and Regeneration Act 1996 provided for statutory adjudication of all

disputes at any time for construction disputes within the denition of the Act.

Adjudication has proved to be very popular with the construction industry, as it

provides a quick and relatively cheap resolution to construction disputes. It is

considered to be “rough justice”, however, due to the tight time constraints (Macauly,

1999). Other criticisms of adjudication are increasing cost due to lawyer involvement

leading to challenges to the adjudicators’ decisions on the grounds of lack of jurisdiction

or breaches of natural justice. Against this backdrop, research points to construction

mediation gaining increasing recognition as a simple, voluntary, without prejudice,

cost-effective solution in which in which a neutral third-party actively assists parties in

working towards a negotiated agreement, with the parties in ultimate control of the

decision to settle and the terms of resolution.

Although extensive research has been carried out on Scottish construction lawyers’

interaction with mediation (Agapiou and Clark, 2012), no single study exists which

adequately captures the attitudes and experiences of mediators themselves, their

predilection for the process, their views on its benets and the optimal regulatory and

statutory environment required for mediation’s further promulgation as the most

IJLBE

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