posted on 2023-08-30, 14:52authored byJackie Gregory-Stevens
Purpose:
English construction, a particularly litigious industry, saw adjudication introduced in 1996 to
improve cash flow and provide time-efficient, cost-effective dispute resolution. The industry
perception is that adjudication no longer provides this. Mediation is a successful dispute resolution
method used in many areas. It could be beneficial in construction disputes; however, there is
limited evidence of significant implementation in England. The purpose of this research is to
establish the current use of mediation in English construction, whether it is appropriate, and the
requirements to encourage greater use.
Method:
A mixed-method approach through case studies (20) followed by interviews (10) with key
stakeholders, obtained qualitative data to develop a conceptual model. This informed the design of
a cross-industry questionnaire, providing quantitative data to triangulate the findings.
Findings:
The results demonstrated that the majority of disputes are adjudicated at a significant cost often
with unpredictable outcomes. Little use was made of mediation. However, when used mediation is
successful in resolving construction disputes, enabling negotiated outcomes. In addition, most
users of adjudication and mediation would prefer to use mediation, where appropriate. The
research also identified significant barriers, including a lack of understanding of mediation and the
contractual requirement to use adjudication. The resistance to mediation was highest from subcontract
organisations rather than larger contractors. Sub-contractors are generally suspicious of
an offer of mediation from the main contractor. There was strong support for mediators being
experts in the field of the dispute.
Conclusion:
The identified barriers need to be removed to enable greater use of mediation. Parties to the
projects (stakeholders) need to receive training in mediation, contacts need to encourage its use
and mediators need to be easily accessible. Work is now ongoing, following this study, to develop
this training, influence the bodies that draft standard contacts and make mediators accessible.