Mediation in construction
Exploring the degree of fitness
In mediation, disputants often tend to walk off at will. This inspired the author to evaluate the degree of fitness as a form of dispute resolution in construction. Fifty cases mediated in the recent past in the State of Qatar were analysed in terms of their approach and the net resultant effect. The tendency will be to fail mediation in construction unless the mediator actively intervenes in changing the dynamic of the conflict by contractual, financial and technical evaluation. The mediator in doing so acts beyond what is truly expected in mediation so that the outcome is arbitral to some extent rather than consensual. The author recommends this is not necessarily the case in the exception of construction and contends that the key elements of mediation such as neutrality and impartiality can still be secured as long as the mediator does not step over the line into judgement.
Love, L. P. (1997) The top ten reasons why mediators should not evaluate. Florida State University Law Review 24(4): 937–48.
Love, L. P. and Kovach, K. K. (1998) Mapping mediation: the risks of Riskin’s Grid. Harvard Negotiation Law Review 3: 71–110.
Riskin, L. (1996) Understanding mediators’ orientations, strategies, and techniques: a grid for the perplexed. Harvard Negotiation Law Review 1(7): 7–51.
Roberts, S. and Palmer, M. (2005) Dispute Processes: ADR and the Primary Forms of Decision Making. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9780511805295
Stulberg, J. B. (1986) Mediator immunity. Ohio State Journal on Dispute Resolution 2: 85–92.
Stulberg, J. B. (1997) Facilitative versus evaluative mediator orientations: piercing the ‘grid’ lock. Florida State University Law Review 24(4): 985–1005.
Waldman, E. A. (1998) The evaluative–facilitative debate in mediation: applying the lens of therapeutic jurisprudence. Marquette Law Review 82(1): 155–70.
Wilmot-Smith, R. (1997) Construction Contracts Law and Practice. Oxford: Oxford University Press.