A reflection on construction mediation in Scotland

Abstract

Recent research in different parts of the UK has pointed to growing acceptance of the mediation process from legal professionals with promises of potential costs savings for end-users. Nonetheless in many jurisdictions take up is low despite positive evidence relating to use and there is scant empirical knowledge about the construction lawyers' role in the referral of cases to mediation and sophisticated evidence relative to lawyer and client interaction in expediting the use of the process. This paper draws on recent work (both interview and questionnaire based) conducted over the past 24 months with construction lawyers and end-users relative to their experiences of mediation in the Scottish construction field. The findings reveal a small yet significant measure of generally successful mediation activity and growing support for the process among both lawyers and end-users. Nevertheless, barriers to mediation's acceptance remain well grounded, both throughout legal and client circles, and various solutions to overcoming such obstacles are examined in the paper. Evidence gleaned in Scotland has significance beyond its borders given the commonality of issues pertaining to mediation growth across all developing jurisdictions and the presence of a dominant adjudication regime that can be seen as a significant inhibiting factor in the use of mediation.