An investigation into the different styles of the lawyer and construction specialist when mediating construction disputes

Abstract

Purpose 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.