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.
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Following an analysis of English construction lawyers’ perceptions, attitudes and practices relative to mediation, this paper aims to offer an insight into the initial stages of…
Abstract
Purpose
Following an analysis of English construction lawyers’ perceptions, attitudes and practices relative to mediation, this paper aims to offer an insight into the initial stages of the legal decision-making process, involving an examination of the degree of control construction lawyers’ exercise over the decision-making process itself, as well as an analysis of the factors that determine the decision to use mediation. The empirical work thus far focuses on the different potential barriers to mediation that typically characterize the relationship clients’ and legal advisors, addressing to divergent monetary interests, non-monetary and psychological interests and barriers in the principal–agent relationship.
Design/methodology/approach
Based on a quantitative survey of legal advisors in England and Wales (n = 212), the purpose of this paper is to explore mediation, specifically the factors that support its use, barriers that hinder use and the perceptions of the efficacy and level of effectiveness of the process.
Findings
The findings indicate that more experienced construction lawyers reported using mediation to a far greater extent than less experienced lawyers, consistent with the proposition that more experienced lawyers develop a cooperative reputation as a function of their professional encounters. The results reveal that the absence of good mediators, influence of the courts, inability to create enforceable precedents, negative experiences and preferences for other forms of dispute resolution do not seem to be significant factors militating against the referral of cases to mediation. It would also seem that self-reported financial interests do not deter construction lawyers from referring cases to mediation. Nevertheless, there may be a need to develop more standardised approaches to setting mediation fee scales to minimise lawyers’ diminished fee income as a consequence of their increased involvement as advocates or counsel in mediated cases.
Originality/value
The recent Jackson Cost Review has provided greater impetus for the use of mediation. A failure to respond to a request to engage in mediation may also be deemed unreasonable by the courts, as, for example, in the case of PGF II SA v. OMFS Company 1 Limited. Nevertheless, while the Civil Procedure Rules are being used by the courts in England and Wales increasingly to “encourage” parties to look to alternative methods to settle differences, little can be gleaned from the literature on the central role of construction lawyers in mediation, and more specifically the extent to which they refrain from referring cases to mediation in a manner inconsistent with their clients’ interests. Much of the construction-based research so far has focused on how mediation is bearing up in practice, its use, appealability and possible improvements.
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Mohamed A. El‐Haram and Andrew Agapiou
The private finance initiative (PFI) is a means of using private finance and skills to deliver capital investment projects traditionally provided by the public sector…
Abstract
The private finance initiative (PFI) is a means of using private finance and skills to deliver capital investment projects traditionally provided by the public sector. Traditionally, public sector bodies have been responsible for the procurement, operation and regulation of capital assets. In PFI, the private sector has the primary role in the operation of constructed facilities, whereas the public sector has a larger role in regulation. There are two parties to a PFI contract: the public sector body or authority, and the private consortium responsible for the delivery of the facility or project. Part of the contract specifies that the private consortium takes on a considerable degree of risk associated with that facility. This paper reassesses the role of the facilities manager as the party responsible for the co‐ordination of planning, design and management of facilities within the PFI regime. The development of strategic long‐term partnerships between client organisations and FM service providers requires the fundamental reassessment of appropriate risk management strategies informed by an integrated information management system that ensures the timely capture and exchange of life cycle data throughout the key stages of the PFI contract.
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James M.W. Wong, Albert P.C. Chan and Y.H. Chiangn
Manpower is the most valuable asset in the construction industry. Based on an examination of literature, selected key data sources, and views from 29 key informants, this paper…
Abstract
Manpower is the most valuable asset in the construction industry. Based on an examination of literature, selected key data sources, and views from 29 key informants, this paper addresses the important labour resource context related to the construction industry in the case of Hong Kong. These include the trends of the critical indicators of the labour market in construction and the implications of the changing markets and technology on the future pattern of skill requirements, and the government policies on construction personnel. The findings are of immense importance to anyone involved in the construction industry, particularly training organizations and policy makers in their mission to maintain a skilled, competitive and adequate workforce able to meet the future demands of the industry. The changing labour market trends and skill requirements pose challenges for construction personnel in terms of upgrading their skills. Further research is recommended to construct robust models predicting the occupational trends in labour resources for effective manpower planning and to establish a labour market information system which could lead to capturing periodic labour market signals with a view to assisting the process of policy making on various human resource development aspects of construction workforce in Hong Kong.
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Andrew Agapiou and Bryan Clark
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…
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.
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Albert P.C. Chan, James M.W. Wong and Y.H. Chiang
The construction industry plays a significant role to the economy of Hong Kong not only in terms of output but also the employment. The sector, however, has been severely hit by…
Abstract
The construction industry plays a significant role to the economy of Hong Kong not only in terms of output but also the employment. The sector, however, has been severely hit by the economic downturn in recent years resulting in serious unemployment. Employment planning becomes one of the critical aspects for the recovery of the economy. The main objective of this paper is to establish a labour demand model for the Hong Kong construction industry. The unique characteristics and the current conditions of the construction labour market are reviewed. Regression analysis based on 123 construction projects was used to compute the relationship between expenditure and site workers employed. The best predictor of average labour demand of construction projects in Hong Kong is found to be DL = 463 C 0.934, where DL is the actual labour demand in man‐days, C is the final cost of contract in millions. The labour demand‐cost relationship can be applied as a manpower forecasting model to estimate the total labour required for a given type of project. The developed model enables a more reliable and accurate planning of manpower requirements in the construction industry.
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Graham Brewer, Thayaparan Gajendran, Marcus Jefferies, Denny McGeorge, Steve Rowlinson and Andrew Dainty
Public‐private partnerships (PPPs) and other innovative procurement mechanisms are frequently used to deliver both an asset and a public service over a protracted period. The…
Abstract
Purpose
Public‐private partnerships (PPPs) and other innovative procurement mechanisms are frequently used to deliver both an asset and a public service over a protracted period. The value streams to the parties involved can be complex, but generally arise from the satisfactory provision of infrastructure that is fit for purpose throughout its life. This research aims to investigate the effectiveness of the facility management (FM) function in delivering long‐term value to both the client and consortium.
Design/methodology/approach
This paper describes a case study of a PPP in Australia that delivered social infrastructure in multiple locations to a state government. Drawing upon multiple perspectives from within the consortium, it utilises inductive principles to identify the influences on value generation through innovation by the FM function.
Findings
The ability of an Australian FM contractor to provide value within a PPP context has been shown to reflect some of the attributes described in literature. However, the extent of innovation, especially in the design and construction phases, has been limited by organisational history and capability, and relational and contextual issues.
Originality/value
This research highlights a flaw in the rhetoric relating to PPP delivery, namely the disconnection between the asset delivery and service delivery phases, which stifles the consortium's capacity to innovate and maximise value. It reveals a set of influences that both resonate with the literature and plausibly explain the suboptimal performance of the FM function within an Australian PPP. By using highly iterative analysis leading to within‐case generalisability, it provides a robust basis for wider investigation of the problem.
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ANDREW R.J. DAINTY, BARBARA M. BAGILHOLE and RICHARD H. NEALE
In order to retain and motivate employees, organizations must respond to their expectations, both in terms of meeting formal aspects of their employment contracts and in…
Abstract
In order to retain and motivate employees, organizations must respond to their expectations, both in terms of meeting formal aspects of their employment contracts and in addressing their less formal expectations of the employment relationship. Within the current human resources management (HRM) literature, these informal expectations are known as psychological contracts. This paper reports on research that explored psychological contracts within the construction industry. In‐depth interviews were held with more than 80 construction managers and professional staff who worked for five large UK contracting organizations. The interviewees were asked to describe their career histories, and to discuss any tensions between the personnel policies of their organizations and their personal career aspirations and expectations. It emerged that responsibility for human resource development (HRD) had been largely devolved to divisional and operational management. This led to HRD becoming fragmented and unresponsive, and to employees becoming disillusioned by their employers' failure to meet their expectations. It is argued that construction companies require a more sophisticated understanding of their employees' expectations of the employment relationship if they are to be retained in the long term.
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Andrew R.J. Dainty, Stephen G. Ison and David S. Root
Econometric forecasts indicate that the UK construction industry faces a severe skills deficit in the foreseeable future. This paper details the results of a major labour market…
Abstract
Econometric forecasts indicate that the UK construction industry faces a severe skills deficit in the foreseeable future. This paper details the results of a major labour market research projects, which canvassed the opinions of over 50 industry stakeholders within the East Midlands region of the UK. Focus groups were used to elicit the collective opinions of key clients, consultants, contractors, industry bodies and employers of all sizes. The key themes and requirements discussed by the participants are used to develop a conjoined strategy for bridging the industry's skills gap at a regional level. It is argued that this package of mutually supportive measures could provide a transferable strategy for addressing skills deficiencies in other regions, particularly given the espoused government aspiration to devolve labour market planning activities to provincial forums and regional development agencies.