ALTERNATIVE MEDIATION OPERABILITY MECHANISMS UNDER STANDARD CONSTRUCTION CONTRACT CONDITIONS

Abstract

The use of alternative dispute resolution (ADR) techniques has been on the rise, particularly as part of the contemporary, staged-type mechanisms forming part of the pertinent conditions of the construction contract. Among the several ADR methods in use, mediation is the method widely found to be explicitly or implicitly incorporated in any such mechanisms, with its use being often stipulated as condition precedent to ultimately resorting to arbitration. This paper investigates the varying statuses of mediation as prescribed under three American-based standard contract conditions, in comparison with its implied status under international such conditions. The within and in-between comparative analyses revealed distinct differences and some resemblances in respect of several concerned attributes including: (1) the staging (sequence step) of the mediation process within the involved claim/dispute resolution timelines, (2) the condition(s) for triggering such a process, (3) the provisions governing its length, and (4) the manner with which it may be ended. The paper concludes with inferences as to the characteristics that may be hypothetically viewed as more conducive to the effective employment of such an ADR technique in resolving disputes.