Search results

The paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK.

This paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced.

The findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer‐driven” and adversarial, with mediators utilising evaluative techniques which some members of the legal profession prefer.

The qualitative data are based on a small sample of mediation users in the UK construction industry. However, interviewees were selected from respondents to a randomly conducted large‐scale postal survey of commercial and construction lawyers. All interviewees were repeat users of the process and all but one had received training in mediation or are practising lawyer‐mediators.

The data provide evidence of different mediator techniques currently utilised in the UK construction industry and the practices of lawyers in the mediation process. The findings have implications for party choice and should inform the development of professional standards in construction mediation practice.

The paper provides original data on the practices of mediators and lawyers in construction mediation.

Explores judicial attitudes in professional negligence cases affecting liability for property investment advice. Focuses on the standard of work required to discharge the legal duty of care and on apparent contradictions in approach by the courts. Reviews a series of cases which are taken to exhibit traditional attitudes to professional liability and studies modern cases which are irreconcilable with those attitudes. Includes liability to third party mortgagors and to third party mortgagees in an analysis of the duty of care, and considers the implications of the perceived expansion of the advisor′s professional duties, which include potential conflicts of interest and the dichotomy between the standards current among professionally qualified and unqualified practitioners. Suggests that judicial attitudes are influential in shaping the practice of property investment advice, but that this intervention is fraught with difficulties as it creates uncertainty among professional advisors about the nature of the tasks undertaken.

Argues that the requirement for references from prospective tenants by property managers is a legal obligation. Considers the nature of the property manager′s duty to obtain references, as well as the nature and extent of this duty, using case law examples. Concludes that the property manager has an interpretative, rather than express function concerning tenant suitability, making the term “professional” appropriate to his function in such situations.

The origin of the General Practice Surveyor can be traced directly to the needs of landowners from medieval times to have their real estate holdings properly managed. With the Industrial Revolution and the increasing complexity of legislation affecting landed property, and diversification of the ownership of land and interests in land, the role of the Management Surveyor has become increasingly more important and complex.

The purpose of this paper is to consider the circumstances in which a refusal to refer a construction dispute to mediation may be judged acceptable in the English Technology and Construction Court (TCC), thus avoiding the imposition of a costs penalty.

The paper uses traditional doctrinal legal methodology in the evaluation of judicial statements in the TCC on the criteria for determining the appropriate use of mediation and combines this with a socio‐legal approach which examines empirical findings on settlement outcome.

An analysis of TCC cases indicates a significant steer from the judiciary on when construction cases are deemed appropriate for the process of mediation. Most cases are identified as suitable, particularly if they involve small sums compared to litigation and where there is uncertainty about factual and legal issues. Judges continue to emphasise the ability of skilled mediators to deal with intractable parties and the importance of continuing commercial relationships despite empirical evidence to the contrary. The personal experiences and perceptions of TCC judges continue to drive mediation “appropriateness criteria”. This could work negatively against its true potential if construction parties' actual experience of the mediation process involves less‐experienced mediators or a failure to achieve settlement.

The paper provides a detailed and scholarly analysis of the application of Court of Appeal's decision in Halsey in the TCC with specific reference to built environment cases. It evaluates empirical findings on the effectiveness of construction mediation on settlement outcome with the judicial steer on “appropriateness criteria”. It is of value to legal scholars, legal practitioners and researchers in the built environment.

The paper seeks to examine empirically the attitudes of English lawyers towards mediation in commercial landlord and tenant disputes. Despite much support from numerous sources there has been very little actual take‐up in this sector. It is premised that the future growth of mediation in commercial property disputes is hindered by the negative or sceptical perspectives held by some lawyers towards mediation.

The paper is based on data from questionnaires and a series of qualitative interviews with a variety of landlord and tenant lawyers combined with a thorough examination of existing literature.

Many lawyers were not keen to recommend the use of mediation. This was partly because of unfamiliarity as well as concerns that mediation is not a genuine legal process and that consequently it lacked status. Legal culture was identified as a problem here. Lawyers also felt that mediation was inappropriate in many cases. Education was suggested as having an important role in changing expectations, providing skills and raising awareness.

The qualitative data are based on a relatively small sample of lawyers active within the UK commercial property sector. Nevertheless, a wide cross‐section of practitioners was chosen.

The paper provides original data on the attitudes and perspectives of lawyers active in commercial property disputes. This is an area that has yet to receive sustained attention.

The purpose of this paper is to examine the codes of professional conduct observed by construction mediators in England and Wales with the aim of assessing whether they raise awareness about party self‐determination and inform users about variations in mediator approaches.

The research collated a list of construction mediation providers drawn from members of the Civil Mediation Council, professional bodies working in construction and other leading providers. A search was then made of mediation providers' web sites to find published codes of conduct.

A substantial number of providers do not emphasize party self‐determination or the steps taken to inform users about mediator approaches in their online codes. Some organisations provide online access to “Mediation Agreements” which determine how the process and mediator approach is selected but generally codes do not place a specific duty on mediators to ensure parties enter mediation with informed consent about their approach.

Online searches may not have found specific mediator codes if organisations publish overarching professional codes of practice for members, if the documents labels do not identify them as a mediator code, or if web sites are not searchable. Further research should investigate how codes of conduct affect construction mediators' practice.

Codes of conduct from countries and international organisations provide exemplars of good practice. Mediation providers in England and Wales should consider revising mediator codes to give weight to the principle of party self‐determination and to articulate a duty that mediators inform users about their approach to ensure they obtain informed consent.

This is an original analysis of construction codes of conduct observed by mediators in England and Wales. A comparative analysis of codes from international sources contributes to the current debate on regulation and future policy developments.

Unresolved construction dispute can be detrimental to project success. A systematic method to evaluate the seriousness of construction dispute of a construction project will assist management to take appropriate corrective actions. Evaluation of construction disputes requires an analysis on both the likelihood of occurrence and its impact, which are normally expressed by practitioners in linguistic terms. The application of classical discrete analysis will not be able to accommodate the fuzzy nature of this information. To determine how fuzzy sets theory can be applied to construction disputes evaluation (CDE), a fuzzy CDE model has been developed based on the knowledge extracted from practitioners in Hong Kong. The fuzzy CDE system consists of four components: dispute identification, dispute analysis; dispute evaluation; and dispute control. This paper describes the framework and operation of the fuzzy CDE system developed. The results indicate that CDE can be modelled by the fuzzy sets theory.

Cooperation is generally purported to be vital to construction project success. However, there has been, as yet, no empirical work done to quantify explicitly the extent to which cooperation, in relation to other factors, determines construction project success. This study attempts to fill this research gap. This paper details a grounded empirical approach to identify important construction success factors using data from 29 interviews, 398 quantitative response and six follow‐up interviews from construction firms in Hong  Kong. Results show how using the grounded approach enables the tapping of unique determinants of project success previously not identified in the literature and point to a potentially fruitful approach for future research in construction management.

Previous studies have postulated that an advance payment system (APS) positively impacts the contractor's working capital and is paramount to ensuring an efficient and effective project cash flow process. However, scant research has been undertaken to empirically establish the cash flow performance and domino effect of APS on project and organisational performance.

The epistemological design adopted a positivist philosophical stance augmented by deductive reasoning to explore the phenomena under investigation. Primary quantitative data were collected from 504 Construction Industry Development Board (CIDB) registered contractors (within the grade bandings 1–9) in South Africa. A five-point Likert scale was utilised, and subsequent data accrued were analysed using structural equation modelling (SEM).

Emergent findings reveal that the mandatory use of an APS does not guarantee a positive project cash flow, an improvement in organisational performance or an improvement in project performance.

The ensuing discussion reveals the contributory influence of APS on positive cash flow and organisational performance, although APS implementation alone will not achieve these objectives. Practically, the research accentuates the need for various measures to be concurrently adopted (including APS) towards ensuring a positive project cash flow and improved organisational and project performance.

There is limited empirical research on cash flow performance and the domino effect of APS on project and organisational performance in South Africa, nor indeed, the wider geographical location of Africa as a continent. This study addresses this gap in the prevailing body of knowledge.