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An investigation into the different styles of the lawyer and construction specialist when mediating construction disputesPurpose The purpose of this paper is to assess the views and experiences of mediators from different professional backgrounds practising in the construction industry. Previous research shows that the legal profession dominates construction mediation in both England and Wales. Design/methodology/approach The phenomenological approach was used to capture the lived experiences of the interviewees and gain insight into their views and practices. The data collection was by semi-structured interviews. The data was then analysed using software to establish themes. Findings The major difference in mediator practice discovered between the two groups is the use of the evaluative style by lawyer and facilitative style by non-lawyer mediators. Non-lawyer mediators strongly reported their criticisms of the evaluative style in mediation suggesting that it undermines the parties’ ability to self-determine their own dispute and reduces the level of satisfaction experienced by the parties in the process of mediation. Lawyer mediators supported the use of the evaluative style as an acceptable compromise on the parties’ self-determination and feelings of satisfaction in pursuit of achieving the goal of a settlement in mediation, which was significantly better than the escalation of stress and costs to the parties in the event that the dispute escalates to litigation. In addition, mandatory mediation, the role of advisors/advocates, governance and the future of mediation were explored. Originality/value The research is anticipated to be of particular benefit to parties considering referring a construction dispute to mediation.
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Insolvency and resolution of construction contract disputes by adjudication in the UK construction industryThe Housing Grants, Construction and Regeneration Act 1996 provides that a party to a construction contract has a right, at any time, to refer any dispute under the contract for adjudication. This resolution method requires a neutral third party, the adjudicator, to determine the dispute within 28 days after receipt of the referral regardless of the complexity of the issues in dispute. The decision is to be implemented even if it is palpably wrong in fact or law. A key assumption of this legislation is that any mistakes made by an adjudicator can be corrected by reference of the same to litigation or arbitration. It is a major concern that restoration of the parties to their correct positions may become impossible where, after implementation of an adjudicator's mistaken decision, the beneficiary of the decision becomes insolvent. This article is a critical review of all the cases in which the courts have dealt with the effect of insolvency on the right to adjudicate and the enforceability of adjudicators' decisions. Two main conclusions are derived from the review. First, the court may decline to enforce an adjudicator's payment decision where there is strong evidence that, on account of formal insolvency, the payee would be unable to make repayment if final resolution of the dispute necessitates it. Second, the only exception so far to the general right to refer to adjudication arises where the other party is in administration. (Taylor & Francis)
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Improving construction management practice in the Gibraltar construction industryResearch has shown that 57% of activities in a construction project is non-value adding (waste) which contributes to the poor performance of the sector. While other countries of the world such the USA, UK, Brazil, Nigeria and Israel among others are seeking to understand this challenge and deploy innovative ways and modern techniques to improve it, limited studies have explored factors that contribute to non-value adding activities (NVA) in the Gibraltar construction industry. The current study aims to identify the factors that contribute to NVA on construction sites in Gibraltar and to present an outlook on how this could be minimised using Last Planner System(LPS). A combination of quantative and qualitative research approaches were used. Thirtyone questionnaire responses were analysed and seven semi-structured interviews were conducted. The investigation reveals that the development of unrealistic schedules, lack of adequate training, delayed approval process and work interruption due to the community are the key factors that contribute to NVA. The study found that the suggestions offered by construction professional for minimising NVA align with some LPS principles. The study concludes that some of the current practices, could serve as justification for the introduction of LPS in the construction sector of Gibraltar.
