Mediation of construction disputes: A step closer to evaluative model

Abstract

In Hong Kong, since the coming into effect of the Court’s Practice Direction No.31 on Mediation in 2010, there has been a rapid increase in the use of mediation in the resolution of disputes. Naturally the increase in the use of mediation will extend to disputes in every sector, including disputes in the construction industry. At present the most popular approach of mediation practiced in Hong Kong is based on facilitative model, also described as a model with an “interest-based” approach. For many years disputes related to construction contracts are largely concerning quantum, arising from different issues such as delay in completion, quantities of work and amount of payment. The approach of negotiation adopted by quantity surveyors is often purely positional bargaining. The adoption of a facilitative approach, in which the mediator will not and indeed cannot express any view on the merits of the parties’ cases, or give any advice to the parties, may sometimes be inconsistent with the parties’ expectation of the ways in which the mediator may assist them in reaching a settlement. In reality there exist cases where the mediator was asked to give views regarding the parties’ dispute, such as those regarding the valuation of certain unit rate, or even the entire amount of the claim. There arises a question, that is, would there exist a market demand for the use of mediation based on an evaluative approach, rather than facilitative approach, in the resolution of construction dispute? To address this question, a survey has been carried out in 2014 to 2015 in the area. Before we move further towards discussion on the survey, we would like to first look into the definitions of mediation and some studies on mediation models.