Mediation for Improved Conflict Resolution

Abstract

Mediation has been recognized as an economical, faster, and more amicable alternative to either arbitration or litigation in resolving construction disputes. Its use in construction appears to receive little resistance from construction practitioners owing to its emphasis on confidentiality, opportunity to salvage business relationships, clarity of the third party neutrals’ role, and flexibility in procedures. Nevertheless, the contractual and statutory rights to employ mediation, the practice of the mediators, the maturity of the industry and the legal system, as well as geographical and cultural differences have also been identified as possible factors influencing its wider use in construction. This special issue has seven papers and collectively presents a timely summary of the use of mediation in a number of jurisdictions. The issue offers a microcosm of what is happening in mediation around the world; articles presented here come from cases in Puerto Rico, the United States, Taiwan, England, Germany, and Hong Kong. The use of mediation to resolve disputes has a long history and appears in slightly different forms across geographic locations and cultures. Yates provides definitions of mediation and accounts of its use in different cultures. Harmon points out that the success of a mediation depends much on the attitude of the disputants as well as the skill of the mediator. Mediation is a form of assisted negotiation, wherein a mediator can bridge the communication gap between the disputants, thereby facilitating a settlement. Foley and Singh offer case studies in Puerto Rico, California, and Germany on the interesting use of negotiation/mediation in handling coastal zone conflicts. These cases aptly illustrate the mediator’s vital role. In addition, the flexible process in mediation allows the generation of innovative settlements that are not possible in arbitration and litigation. Yan examines the use of mediation on project disputes under the governance of public construction contracts as a result of the Government Procurement Act GPA in Taiwan. The conception of the dispute settlement mechanism under the GPA is to mitigate the impacts of disputes with a filtering hierarchy of various alternatives. Some say that the GPA was amended supposedly for more cost-effective and speedy dispute resolution; however, the attempt to provide one “best” way for the variety of circumstances may well be too ambitious. The mediator’s authority to propose settlement agreements appears to be akin to the concept of conciliation. The UK jurisdiction is perhaps one of the forerunners of the common law system in introducing alternative dispute resolution ADR in civil procedures. Brooker outlines the use of ADR under the UK Civil Procedure Rules CPR . For construction disputes, mandatory use of adjudication has been affected. Moreover, under the CPR both the judiciary and the parties have a duty to consider ADR alternatives such as mediation. Cost sanctions