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Construction mediation in Scotland: an Investigation into the attitudes and experiences of mediation practitioners

Lookup NU author(s): Professor Bryan Clark

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This is the authors' accepted manuscript of an article that has been published in its final definitive form by Emerald Publishing Limited, 2016.

For re-use rights please refer to the publisher's terms and conditions.


Abstract

Recent research on construction mediation in Scotland has focused exclusively on construction lawyers’ and contractors’ interaction with the process, without reference to the views of mediators themselves. This paper seeks to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Based on a modest sample, the survey results indicate a lack of awareness of the process within the construction industry, mediations were generally successful and success depended in large measure to the skills of the mediator and willingness by the parties to compromise. Conversely, the results indicate that mediations failed because of ignorance, intransigence and over-confidence of the parties. Barriers to greater use of mediation in construction disputes were identified as the lack of skilled, experienced mediators, the continued popularity of adjudication, and both lawyer and party resistance. Notwithstanding the English experience, Scottish mediators gave little support for mandating disputants to mediate before proceeding with court action. A surprising number were willing to give an evaluation of the dispute rather than merely facilitating a settlement. The research concludes that, in Scotland, mediation had not yet become the indispensable tool for those seeking to resolve construction disputes due to lack of support from disputing parties, their advisors and the judiciary.


Publication metadata

Author(s): Agapiou A, Clark B, Trushell I

Publication type: Article

Publication status: Published

Journal: International Journal of Law in the Built Environment

Year: 2016

Volume: 8

Issue: 2

Pages: 101-122

Print publication date: 20/07/2016

Acceptance date: 01/02/2016

Date deposited: 08/04/2019

ISSN (print): 1756-1450

ISSN (electronic): 1756-1469

Publisher: Emerald Publishing Limited

URL: https://doi.org/10.1108/IJLBE-09-2015-0014

DOI: 10.1108/IJLBE-09-2015-0014


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