THE VOLUNTARINESS OF DISPUTANTS IN CONSTRUCTION MEDIATION

Abstract

Mediation has been promoted to resolve construction disputes due to much-heralded time and cost advantages. Formal introduction was affected in early 20’s after several successful pro bono mediation pilots. In Hong Kong, immense promotional efforts have been directed to make mediation the mainstream mechanism for alternative dispute resolution. Despite promotional efforts, a disheartening decline in use of mediation was noted after an initial surge. For wider adoption, there has been an ongoing debate on before disputing parties resorting other forms of dispute resolution, whether courts should compel them to attempt mediation. This study examines pillars of successful mediation and seeks to reveal the root causes of Hong Kong's sluggish uptake of construction. Review of literature informed key mediation attributes and manifestations of voluntariness in construction dispute mediation. Scale rating by construction professionals was employed to establish mediation attribute importance ranking as well as representativeness of manifestation of voluntary participation. "The exchange of critical information is effective" and "The disputant considers the mediator trustworthy" were ranked as the two most important mediation attributes, suggesting the importance of having a conducive environment for genuine communication. It is therefore proposed that voluntary participation is a necessary condition to create a collegial atmosphere. “Working cooperatively with the mediator” and “Preparing settlement options before attending the mediation” were the top two ranked manifestations of voluntary participation. Most research on mediation mainly focus on the advantages of mediation. Findings of this study raise the caveat when disputants are asked to attempt mediation that erodes voluntary participation.