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Article
Publication date: 12 July 2011

Shahla Ali and Felicia Lee

The purpose of this paper is to examine the impact of recent civil justice reforms in five jurisdictions including Singapore, Malaysia, Hong Kong, the UK and Canada on the…

Abstract

Purpose

The purpose of this paper is to examine the impact of recent civil justice reforms in five jurisdictions including Singapore, Malaysia, Hong Kong, the UK and Canada on the resolution of civil and commercial disputes.

Design/methodology/approach

The study, drawing on a comparative cross‐jurisdictional methodology, reviews the scope and nature of such reforms and examines lessons learned regarding implementation.

Findings

The findings of the research indicate that such reforms are most effective where regular evaluation to fine‐tune mediation rules occurs concurrently and in conjunction with the implementation of such reforms.

Research limitations/implications

The limitation of this research is that it is confined to already existing court case statistics, judicial commentaries and reviews of the five selected jurisdictions.

Practical implications

The practical implications of the study find that in general, civil justice reforms have made some progress in achieving the aims of encouraging cost‐effective, expeditious and amicable case handling within the civil justice system.

Originality/value

The paper contributes to a global analysis of effective approaches to civil justice reform and in particular reforms in mediated case handling.

Details

International Journal of Law and Management, vol. 53 no. 4
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 4 February 2014

Amira Galin

The purpose of this paper is to obtain insight into court-referred mediation in the Israeli Labor Courts, by analyzing its processes and outcomes, as a function of tactics used by…

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Abstract

Purpose

The purpose of this paper is to obtain insight into court-referred mediation in the Israeli Labor Courts, by analyzing its processes and outcomes, as a function of tactics used by both the disputants and the mediator.

Design/methodology/approach

Observation of 103 court-referred mediations, for each of which a detailed process and outcome were documented. Data on disputants' refusal to participate in the mediation was also collected. At the end of each mediation case, disputants were given a questionnaire in which they expressed their satisfaction with the outcome and their evaluation of the mediator's contribution.

Findings

A low rate of refusal to participate in court-referred mediation was found. Also, the higher the ratio of soft tactics to pressure tactics employed (by all parties involved) during the process, the higher the rate of agreements. Mediators use significantly more soft tactics than disputants, and are more active in using tactics. The two significant variables that predict the mediation's agreement are the ratio between soft tactics to pressure tactics used by all parties, and mediator contribution to the process.

Practical implications

The significant role of soft tactics in the process, outcome, and satisfaction of court-referred mediation may serve as a guideline for disputants and mediators.

Originality/value

This unique research, which examines the impact of tactics on court-referred mediation, may provide added and significant theoretical insight into its process and outcome, as well as a better understanding of other “hybrid” (compulsory at the beginning, voluntary at the end) mediations.

Details

International Journal of Conflict Management, vol. 25 no. 1
Type: Research Article
ISSN: 1044-4068

Keywords

Article
Publication date: 12 October 2015

Fei Lanfang

This paper aims to examine how the law may play a role in mediation by paying special attention to how the law is excluded from and included in the process of court mediation in…

Abstract

Purpose

This paper aims to examine how the law may play a role in mediation by paying special attention to how the law is excluded from and included in the process of court mediation in China.

Design/methodology/approach

Hundred model court mediation cases selected by the Supreme People’s Court of China were analysed and reviewed.

Findings

The law is relevant in Chinese-style court mediation in four ways: first, judge-mediators are intended to use mediation to avoid resolving legal difficulties or challenges; second, judge-mediators consult the law to anticipate the losing party and the potential negative effects that might result from the adjudication; third, judge-mediators refer to the law to propose a mediation scheme or plan to guide the parties to settle; and fourth, judge-mediators would use the law as a bargaining chip in various ways to induce the parties to settle.

Research limitations/implications

Standards should be set out for the use of law in the mediation process to standardise judge-mediators’ actions, to ensure that the law is not used coercively to push settlement, which would undermine the parties’ self-determination in mediation.

Originality/value

This paper provides an original understanding of how law affects the process, the outcomes and, ultimately, the nature of settlements that parties achieve through court mediation in China. This study contributes to the literature that argues that ethical norms and legal standards should be set to direct those legal evaluations.

Details

International Journal of Conflict Management, vol. 26 no. 4
Type: Research Article
ISSN: 1044-4068

Keywords

Article
Publication date: 17 April 2009

Penny Brooker

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…

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Abstract

Purpose

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.

Design/methodology/approach

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.

Findings

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.

Originality/value

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.

Details

International Journal of Law in the Built Environment, vol. 1 no. 1
Type: Research Article
ISSN: 1756-1450

Keywords

Article
Publication date: 8 February 2016

Umar A. Oseni and Abu Umar Faruq Ahmad

The paper aims to examine significant developments in the institutional framework for dispute resolution in the Islamic finance industry in Malaysia. Malaysia, as part of its…

1888

Abstract

Purpose

The paper aims to examine significant developments in the institutional framework for dispute resolution in the Islamic finance industry in Malaysia. Malaysia, as part of its efforts to consolidate its enviable Islamic finance industry, has strengthened its institutional framework for dispute resolution.

Design/methodology/approach

Data for this study were collected from both primary and secondary legal sources. Through a conceptual legal analysis, the institutional frameworks of dispute resolution in the Malaysia’s Islamic finance industry are studied.

Findings

The study finds that Malaysia is far ahead of other jurisdictions by a significant margin in spearheading reforms in the emerging global Islamic finance industry. The dispute resolution framework has been largely affected by the recent reforms.

Research limitations/implications

Other jurisdictions may borrow a leaf from Malaysia’s initiative in providing a robust legal framework for dispute management in the Islamic finance industry.

Practical implications

Apart from adopting Malaysia’s framework and possibly adapting it to suit their specific local variations, other jurisdictions may also encourage Islamic financial institutions to incorporate effective dispute resolution processes in Islamic finance contracts.

Originality value

This study critically discussed most recent developments in the institutional framework on dispute resolution in the Islamic finance industry in Malaysia.

Details

International Journal of Law and Management, vol. 58 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 1 January 1995

James W. Grosch, Karen G. Duffy and Paul V. Olczak

Although ethnicity and gender play a significant role in many types of social interaction, little research exists on their importance in mediation. An analysis of community…

Abstract

Although ethnicity and gender play a significant role in many types of social interaction, little research exists on their importance in mediation. An analysis of community mediation cases (N = 27,852) from New York state demonstrated that, consistent with predictions from criminal justice research, Whites were underrepresented in mediation relative to Blacks and Hispanics, and that females were more likely to participate in mediation as claimants than men. Both ethnicity and gender were related to the type of dispute, degree of violence, intimacy between disputants, source of referral, and mediation outcome. Additional analysis, taking into account source of referral, education, and income level of the claimant, did not fully account for the observed ethnic or gender differences. Results are discussed in terms of reasons why ethnic and gender differences exist in mediation, limitations of demographic data, and areas for future research.

Details

International Journal of Conflict Management, vol. 6 no. 1
Type: Research Article
ISSN: 1044-4068

Article
Publication date: 6 September 2021

Elaina Behounek and Michelle Hughes Miller

The purpose of this study is to understand mediation in divorce cases where intimate partner violence (IPV) is a concern. These cases may involve managing power imbalances…

Abstract

Purpose

The purpose of this study is to understand mediation in divorce cases where intimate partner violence (IPV) is a concern. These cases may involve managing power imbalances, coercive control or risk for continued violence.

Design/methodology/approach

In this paper, the authors use feminist and sociological theoretical approaches and grounded theory to analyze triangulated ethnographic data to explore how mediators construct and manage the issue of IPV in mediation.

Findings

The results indicate that mediators often share a common discourse about IPV that asserts that mediators are professionals with the skills to both identify IPV and to appropriately conduct mediations where IPV is present. However, to achieve successful mediations mediators sometimes choose to discount the seriousness of IPV in assessments. They also use a set of fluid strategies to handle potential power imbalances that allow them to represent themselves as unbiased, even while those strategies risk the equity of the mediation.

Practical implications

The authors share several strategies that could enhance the social justice of the process for all parties, including uniformity in assessing whether IPV is a concern and oversight of mediators’ practices and training.

Social implications

The results indicate mediators often share a common discourse about IPV that asserts mediators are professionals with the skills to identify IPV and to appropriately conduct mediations where IPV is present. To reach settlement mediators use a set of fluid mediation and accommodation strategies to handle potential power imbalances due to IPV that allow them to represent themselves as impartial, even while those strategies may risk equity in the mediation.

Originality/value

The unique data provide a behind-the-scenes look at mediation generated from participant observation of mediation training and actual mediations, along with interviews with 30 practicing mediators.

Details

Journal of Aggression, Conflict and Peace Research, vol. 14 no. 1
Type: Research Article
ISSN: 1759-6599

Keywords

Article
Publication date: 11 July 2016

Ian Trushell, Bryan Clark and Andrew Agapiou

This paper aims to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland…

Abstract

Purpose

This paper aims to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Recent research on construction mediation in Scotland has focused exclusively on construction lawyers’ and contractors’ interaction with the process, without reference to the views of mediators themselves.

Design/methodology/approach

The entire research design of this research was constrained by the small population of practising Scottish construction mediators (thought to be circa. 20 in 2013). The design encompassed a literature search, participant interviews, questionnaire survey and qualitative and quantitative data. The research questionnaire was designed to capture data related to the biography, training and experience of those interviewed before their opinion on the benefits of, and problems with, mediation were sought.

Findings

The results indicate that mediations failed because of ignorance, intransigence and over-confidence of the parties. Barriers to greater use of mediation in construction disputes were identified as the lack of skilled, experienced mediators, the continued popularity of adjudication and both lawyer and party resistance. Notwithstanding the English experience, Scottish mediators gave little support for mandating disputants to mediate before proceeding with court action. A surprising number were willing to give an evaluation of the dispute rather than merely facilitating a settlement.

Originality/value

There are few experienced construction mediators in Scotland, and the continued popularity of statutory adjudication is a significant barrier. Mediators believe that clients’ negative perceptions of mediation are a bigger barrier than lawyers’ perceptions. The mediators wanted judicial encouragement for mediation backed by some legislative support, mediation clauses incorporated into construction contracts and government adoption of mediation as the default process in its own contracts.

Details

International Journal of Law in the Built Environment, vol. 8 no. 2
Type: Research Article
ISSN: 1756-1450

Keywords

Article
Publication date: 11 July 2016

Ray Wall, Nii Ankrah and Jennifer Charlson

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…

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.

Details

International Journal of Law in the Built Environment, vol. 8 no. 2
Type: Research Article
ISSN: 1756-1450

Keywords

Article
Publication date: 10 July 2009

Deniz Ilter and Attila Dikbas

The Turkish Ministry of Justice submitted the Draft Law on mediation in legal disputes, which was predicated on the European Council (EC) Directive on certain aspects of mediation…

625

Abstract

Purpose

The Turkish Ministry of Justice submitted the Draft Law on mediation in legal disputes, which was predicated on the European Council (EC) Directive on certain aspects of mediation in civil and commercial matters, to the Turkish Parliament in June 2008. Contentious arguments have followed on the provisions of the Draft Law as well as on the overall applicability of mediation in Turkey. The purpose of this paper is to examine the context surrounding the new mediation phenomenon in order to identify the key challenges awaiting its widespread use in the Turkish construction industry.

Design/methodology/approach

Two complementary approaches were adopted in this paper. First, an analysis of the most debated papers of the Draft Law is carried out to determine the potential problems associated with the legislation by making comparisons with the EC mediation directive and mediation laws in some of the member states. Second, a series of structured interviews are organized among the Turkish construction industry to gain better insight on prevalent perceptions of mediation, assess pertinent demand and determine the sector specific challenges.

Findings

The comparative analysis of the Draft Law and the empirical results obtained from the industry indicate a promising platform for the deployment of mediation. However, the adverse attitude of lawyers, inadequate financial incentives, the lack of an industry specific institutional framework and low level of knowledge on mediation in the industry hinder wide acceptance despite the growing interest, as evidenced in the results of the interviews.

Originality/value

This paper is aimed to be a timely contribution to the process of the establishment of mediation in the Turkish construction industry. The paper provides a comprehensive analysis of the Draft Law through comparison with other legislation and furnishes original data on the perceptions of mediation in the Turkish construction industry in the quest for making projections for its further development.

Details

International Journal of Law in the Built Environment, vol. 1 no. 2
Type: Research Article
ISSN: 1756-1450

Keywords

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