Construction disputes in England: the option for mediation

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.