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An investigation of construction lawyer attitudes to the use of mediation in Scotland

Agapiou, Andrew and Clark, Bryan (2010) An investigation of construction lawyer attitudes to the use of mediation in Scotland. In: Royal Institute of Chartered Surveyors COBRA 2010 conference, 2010-09-01 - 2010-09-03.

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Abstract

An examination of the literature specific to Alternative Dispute Resolution in the construction industry in Scotland offers a snapshot of a discipline whose research base is in its infancy (Agapiou, 2010). It is widely documented that legal advisers generally perform a gate-keeping role, advising clients on the most appropriate form of dispute resolution for particular cases. Is it reasonable to believe that the attitudes of construction lawyers in Scotland creates a real limit on what could be implemented by a government that seeks to promote modern methods of dispute resolution as part of its civil justice reform agenda? 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. Despite the small sample used in this study, there is little evidence within the study that the inherent conservatism of lawyers in Scotland in their approach to the conduct of disputes brought to them by clients has militated against the use of mediation: this is contrary to anecdotal evidence in the construction industry. Neither does it seem, that the lack of knowledge of mediation, far less experience of its operation, along with fear of the unknown as opposed to an adversarial process which for all its imperfections lawyers understand unequivocally has prevented the use of Mediation to resolve construction disputes. Interestingly, there would also appear to be some evidence of a modest bottom up growth of construction mediation according to the research findings.