Scottish construction lawyers and mediation: an investigation into attitudes and experiences

Abstract

Purpose

The purpose of this research is to paint a picture of the current utility of mediation in the Scottish construction sector; determine the willingness of Scottish construction lawyers to shift away from traditional dispute resolution approaches towards mediation; and ascertain the drivers towards the adoption of mediatory techniques and the barriers to change.

Design/methodology/approach

Drawn from a questionnaire survey, this paper seeks to add to the dispute resolution literature by identifying the attitudes of construction lawyers on the use and effectiveness of mediation to resolve construction disputes in Scotland.

Findings

The findings suggest that there is a core of Scottish construction lawyers in Scotland that recognize the promise of mediation as a useful dispute resolution tool. Respondents generally profess knowledge of the process and some measure of positive practical experience and espouse positive views on mediation. Their response to mediation then does not appear to be one of cultural conservatism or fear of the unknown as opposed to traditional dispute resolution mechanisms, which for all their imperfections lawyers understand unequivocally.

Research limitations/implications

It is recognized that the introduction of mediatory techniques into construction disputes will have a cumulative effect on the Scottish legal fraternity over time. Cross‐sectional studies are often unable to yield information about the direction of causal relationships between variables that are interrelated in a complex way. Neither do cross‐sectional studies permit researchers to assess the effectiveness of intervention strategies.

Originality/value

This is the first empirical work ascertaining the views and experiences of Scottish construction lawyers on mediation. While the research reveals evidence of a modest bottom‐up growth of construction mediation in Scotland, it also provides insight into key policy issues which will require to be resolved if mediation is to move from the margins to the mainstream of construction disputing practices in Scotland.

Citation

Agapiou, A. and Clark, B. (2011), "Scottish construction lawyers and mediation: an investigation into attitudes and experiences", International Journal of Law in the Built Environment, Vol. 3 No. 2, pp. 159-181. https://doi.org/10.1108/17561451111148266