Construction Mediation Versus other Types of Mediation

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Introduction

Mediation may be thought of as “assisted negotiation.”

Negotiation may be thought of as “communications for agreement.”

Hence, mediation is “assisted communication of agreement.”

The concept of “informed consent” is fundamental to mediation. So long as the disputants understand the mediation process and agree to participate in the mediation process, any mediation can take place and is highly likely to reach a settlement. Mediation can be used to solve any dispute in any field ranging from family related disputes, business disputes, to political disputes. Although the basics in any mediation process are almost the same in any type of disputes, several differences can be realized regarding the details of the process and the mediator's style and approach to the dispute. In this literature review mediation processes and styles for several types of disputes will be explained and compared to those used in solving construction related disputes which will be serving as a benchmark to all other types of mediation.

Methodology

  • Literature reviews based on journal articles.

  • Specific case studies of mediation tactics and techniques in construction and other fields

  • Real life observations and documentaries.

  • Interview with Mr. Tarek Labban, a lawyer practicing mediation for solving disputes in Lebanon

History of Mediation

The activity of mediation appeared in very ancient times, and is used as an alternative to institutionalized forms of conflict resolution in which settlements are imposed by judges, arbitrators, or other “neutral” adjudicators. Historians presume early cases in Phoenician commerce . The practice developed in Ancient Greece, then in Roman civilization. Mediation began being recognized for having an important role in the twentieth century; that is after it became institutionalized.  In 1896 a conciliation act concerning the behavior in industrial relations was endorsed in the United Kingdom. In 1913 the U.S. Department of Labor formalized alternative dispute resolution (ADR) processes as an alternative to litigation and a board called the “commissioners of conciliation” was selected to deal with labor / management disputes. The U.S. Conciliation Service was latter formed of these commissioners and in 1947 that entity became the Federal Mediation and Conciliation Service. In 1926 the American Arbitration Association was set up as a commercial service for the resolution of disputes in the private sector. In 1963, and in order to promote for court-related family conciliation as an alternative to family court litigation, the Association of Family and Conciliation Courts was founded. After that mediation was introduced as a means of alternative dispute resolution in the field of medical insurance and then in the construction industry in year 1985.

Mediation in the Field of Construction

The construction industry contributes to nearly $900 billion per year (Construction Economics 2002) to the U.S. economy, making it the largest single production sector. It represents approximately 13% of the Gross National Product and employs about 8% of the workforce. The design and construction process is often lengthy, and involves negotiations, collaboration, and compromise among multiple parties including but not limited to designers, contractors, and owners. The complex, relational, and lengthy process of designing and building makes construction a process in which disputes are virtually ensured (McManamy 1994). These construction disputes have been basically solved using litigation or arbitration during the early days, but since 1985 mediation has been used to resolve construction disputes. This Alternative Dispute Resolution (ADR) method is gaining more and more popularity with time in the construction industry due to its relatively high benefits as compared to traditional litigation or arbitration.

Construction Mediation Process

Prior to mediation

Although the big dispute between different parties involved in a construction project, they should agree to open up on some lines of communication for the mediation to take place. Starting by agreeing on a mediator, after which they start exploring to which point they should give in information before mediation. In addition to that, many other considerations should be thought of such as:

Who should participate from each party other than the decision makers? Do they want their technical advisors/lawyers to be there? How should the negotiating team approach the session? What role will each participant play? Is there a dispute between the insured and the insurer that is relevant to the mediation? How can the carriers be forced to become engaged in the process? ... (American Arbitration Association)

Parallel to that, the mediator should start establishing a line of communication with both parties to gain their trust and start working out all the logistics such as the dates, schedule, place, seating and process…

Preparation for mediation

Different themes can be recognized when approaching a mediation process:

  • Wants versus Needs: most of the times, parties would enter the mediation and start telling the mediator about what they want. What the mediator should do is to open the lines of communication and define what the needs of each party are. “Mediation is not litigation. No one will get what he wants.” (Albert Bates 2007)

  • Objective case assessment: the parties should be able to assess the damages that will be made to their business if no negotiated resolution has been achieved. Some of the risk might include that if they go to litigation or arbitration, the ruling might be evaluated not for their favor and not to mention how this will affect their reputation and relationships.

  • Identify the obstructions to a resolution: it is important to identify all barriers early on of the mediation because these obstacles could have a great effect on the outcome. Such as a vast difference in opinion, disproportion case knowledge or information, the decision makers are not participating…

  • Prepare the client for the process: most of the people would go to mediation with a lot of misconceptions. The mediator should explain the process thoroughly and remind the participants that they should be committed to it, they should allow the time necessary for it to work and they should remain positive and proactive.

The details in mediation can be different according to each case and the style of the mediator, but everything should follow a certain process which can be divided into a beginning, the middle and the end.

According to Albert Bates (2007), the beginning is that every party should be “engaged” to the process to be successful. This will include venting and opening up of emotions, feelings and thoughts. The mediator should listen carefully to both parties so that he can earn their trust from the beginning and start establishing what the reasonable issues that should be noted are.

In the middle, both parties will start challenging the opposition's position. The challenges here are more objective and the mediator should take note of the information of interest for both parties and what are their exact needs.

At the end, the mediation will move into a “meaningful engagement with the various parties” where bargaining and negotiating the options can start happening to end the mediation. (Albert Bates 2007)

Mediation in Fields other than Construction

Mediation for Social Affairs

Conciliation “SULHA”

The sulha, a custom practiced in the Middle East since thousands of years ago, is used as a path to settle the relationship between the families of the disputants, while legal systems are used to solve the dispute between individuals or between individuals and the state. The sulha process is an informal technique for solving disputes and conflicts. Generally speaking, all types of disputes can be solved using the sulha, these disputes range from business disputes to consumer disputes and reaching disputes arising from acts of violence. All clan conflicts can be tackled through a sulha, no clan conflict is considered as small to be part of a sulha. (Doron Pely 2008)

The Sulha Committee

The sulha committee or jaha in Arabic is the committee authorized to conduct the sulha. The power of the jaha is based on the committee members' position in the society, and the authorization they get from the disputants. The jaha members are usually honest, respected, even-handed, and intelligent men from within the community. No woman has been permitted to be part of a jaha. Success can depend on the influence the jaha leader has in the community. Having influential members serving on the jaha increases the possibility of resolving any dispute. The participation of any person on the jaha can be vetoed by the Disputants. (Doron Pely 2008)

Initiating the Jaha

If a conflict involves family matters or involves a criminal offense, this conflict usually leads to a dispute between the clans to which the disputants belong to. The sulha process is used to resolve the clan-level dispute. The jaha does not gather directly after any crime or dispute. In order for the jaha to act in an official manner some steps should take place. First, a member of the jaha is contacted by a representative of the offenders' family asking the jahas' interference by accepting meeting with the family of the offender. Then the offenders' family gives the jaha a binding written authorization or tafwid in Arabic. This document is composed of two parts. The first contains an authorization from the offenders' family for the jaha to contact the victims' family on their behalf. The second contains a strict commitment from the offenders' family to abide by any verdict reached by the jaha. It may take several days to obtain a signed tafwid. Then, the next step is for the jaha to go to the victim's house, stand in front of the door and recite the following: “We were sent and are authorized as jaha by the offender's family and we invite you to consider us.” The purpose of this invitation is to have the victim's family publicly authorize the jaha to negotiate on its behalf with the offender's family. This may not happen immediately. The victim's family may be too upset to agree to start the sulha process. But taking too long to authorize the jaha may appear to be a sign of disrespect to the offender's family. (Doron Pely 2008)

Negotiating a Ceasefire

The jaha's initial goal is to persuade the families to the victim and offender to agree to a temporary ceasefire, called hudna in Arabic, during which the jaha can conduct an investigation of the dispute, reach a verdict, and obtain an agreement of the two families to abide by it. Negotiating the hudna involves the use of shuttle diplomacy, similar to mediation of today. In rare instances the jaha may ask the police in confidence to “extend” the detention of the offender in order to pressure the offender's family to agree to a hudna. (Doron Pely 2008)

The Jaha's Investigation

Having secured the authorization of the disputants and their commitment to abide by the jaha's final decision, and having negotiated the hudna, the jaha begins its investigation of the dispute. The purpose is to determine the scope of the offender's responsibility and liability. The jaha's investigation is generally carried out in private discussions with representative of the disputing clans, and with witnesses who either steps forward and volunteer their knowledge or are identified by the disputants or other witness. Tradition holds that the jaha usually meets first with the victim's family to demonstrate empathy and compassion. The meetings with each side may take as little as a day, or much longer, possibly weeks, months or even years. As in mediation today, the jaha will reframe aggressive statements made by a disputant and highlight any positive or conciliatory statements to develop a framework within which to resolve the conflict. During the private discussions with each side, the jaha will tell each side about prior similar disputes and how they were resolved. (Doron Pely 2008)

Determining the Verdict

After interviewing the parties and witnesses, and visiting the sites where the events took place, the jaha will discuss all the issues. If the case under discussion is one in which the offender has already assumed responsibility (such as in murder case), what remains for the jaha to determine is the amount of compensation, and other conditions of the reconciliation. If the dispute did not arise out of violent conduct, the jaha will not try to assign guilt. Instead, much like a mediator in modern mediation, it will try to craft a mediated agreement that both sides will be able to accept without feeling that they were singled out in any way. The jaha will also go to some length to avoid giving either clan the feeling that it is being forced into an agreement (even though the jaha has the full authority to impose the agreement). Every once in a while a vote of the jaha will be taken. Once a majority is achieved, the final verdict is reached and the discussions end. The verdict will be presented to the two families as a unanimous decision. The jaha verdict is supposed to be binding on the disputing clans. A rejection of the verdict would be considered a severe infraction of the sulha process, an insult to the jaha, and a general loss of face for both sides and for the jaha members. Even though both families agreed to abide by the verdict, one (or both) may engage in lengthy discussions with the jaha over its terms if it believes that the final payment is insufficient. When both families agree to the verdict, it is then memorialized in writing. Both families receive a copy of the written agreement. At this point, there are no further negotiations or appeals allowed on its contents. The sulha agreement must be signed by representatives of both clans in a public ceremony. The jaha determines the location and date for the ceremony. It also determines who will participate from each side and which community dignitaries will be invited to attend. At the public ceremony, the sulha agreement is read aloud and signed by the designated representatives for each clan. Afterward, it is signed by the members of the jaha and then dignitaries from within and without the community. All this is designed to give the agreement as much weight as possible in the hope that the agreement will be respected. The sulha ceremony involves three symbolic acts: 1- Musafha: a handshake between the families of the offender and victim; 2- Musamaha: a declaration of forgiveness by the victim's father; and 3- Mumalaha: the ceremonial meal that ends the sulha process. The offender's family extends an invitation to the victim's family to attend the ceremonial meal. The victim's family is obliged to accept the invitation and sit down at the table but they are not required to eat. The mumalaha ritual takes place in most murder cases. (Doron Pely 2008)

Marital Mediation

Marital mediation is a considerably new area in family dispute resolution methods. This area is increasing in its importance as people understand it more and more, especially that the main goal of marital mediation to help improving communication among couples in a way for them to stay married. John Fiske (1997) first coined the term “Marital Mediation”.

Marital Mediation Process

Marital Mediation aims at helping couples who are still willing to live together or stay married. In order for the process to have a good start it is of great importance that the mediator helps the couples express their loyalty to their unification. After that, the process goes on in a plastic manner based on the nature of the dispute and the mediators' approach. Marital Mediation uses techniques used in other types of mediation in order to help improve the communication methods among couples. By improving their communication skills the mediator helps them discuss the areas of conflict in their relationship, leading them to make some behavioral changes that will help them lessen future conflicts. Usually mediated agreements are in a written format, but in marital mediation many mediators believe that it is the creation of more in depth understanding of the relationship among couples that matters, not the written agreement. In spite the differences in styles among mediators; a common methodology is followed during Marital Mediation. (Susan Boardman 2009)

1. Explain the Marital Mediation Process: The mediator has to explain his role as a neutral person whose role is to listen, help the couples talk, and help the couple generate an agreement to solve the issue of conflict.

2. Listen to their Presenting Problem: The mediator has to listen, and ensure that each party has the chance to say everything they he or she want to say, making sure to detect the non verbal interactions and any difficulties in verbal expression.

3. Look for Issues that can be mediated: The mediator, by listening to the couple, looks for areas of conflict that can be mediated. These areas are sometimes identified by the disputants and sometimes it is the mediators' role to identify them.

4. Teach Communication Skills: Poor communication skills are usually a main reason behind intensifying the stress among couples. It is the mediators' role to help the couple understand that they both have the right to their feelings. Working on improving the couples' communication skills, the mediator gives the couple a good tool to help them solve any future disputes that can arise between them.

5- Reaching Agreement: Marital mediation or any type of mediation aims at reaching an agreement, even if the agreement is not to agree. This can be in a written format which is considered legally binding, or in an informal unwritten agreement.

How Marital Mediation Works?

Marital mediation usually focuses on specific conflicts between couples, for that the sessions are very short. This type of mediation engages several sessions, each of them not more than 2 hours in length. Marital mediation aims at getting the couples to show some changes in their behavior to help them lessen the possibility of any future disputes. It is a really positive act, since it eschews liability or guilt and gives the disputants the chance to feel competent. The mediation process gives the couple a feeling of control since they generate the solutions for their conflicts. This gives any agreement reached much more strength to stick since the disputants generated it themselves. In Marital Mediation a major joy for the couple is to learn how to have better communication even if they did not reach a full agreement, the process in itself is a big gain to their relationship.

Mediation for Politics

A historical review of political disputes reveals that most of them are long-running deep rooted conflicts that are rarely resolved without outside assistance such in mediation. Mediation is a process in which a neutral third party assists in resolving a dispute between two or more parties. The third party in political conflicts is usually the United Nations for major conflicts or any neutral party such as the Arab League for Intra-Arab conflicts and The Carter Center—International Negotiation Network.

United Nation Mediation Mandate

In the U.N. the act of mediation describes the political skills carried out by the U.N. secretary general or his representatives through practice of the secretary general's “good offices”, without the use of force and in keeping with the principles of the UN charter. More formally, a U.N. mediation mandate is specifically defined when the U.N. is officially called upon to mediate a resolution to a conflict. In this latter case where the concerned parties agreed to the mediation mandate, they are more willing to accept that the U.N. mediator‘s role is to help find solutions to resolve the matter. U.N. mediation mandates give the secretary general or his envoys the authority to:

  • Meet and Listen to all parties of the conflict

  • Consult all relevant parties for the resolution of the conflict

  • Propose ideas and solutions to facilitate the resolution to the conflict

Factors that affect negotiations:

  • Neutrality of the mediator

  • Structural Variables alone do not determine the outcome of negotiations

  • Diplomatic ambiguity can be a destructive factor when the parties turn to implementation

  • Efforts to convince one's constituents of the need for compromise may conflict with one's bargaining strategies.

As in other mediations, a U.N. mediated outcome is not binding, unless the Security Council takes actions to enforce the agreement. The final settlement implementation rests upon the commitment of the conflicted parties.

Carter Center - International Negotiation Network

Through its Conflict Resolution Program, the International Negotiation Network (INN), part of the Carter Center uses experienced peacemakers to prevent and resolve armed conflicts around the world. The INN is a network of recognized persons, chaired by former U.S. President Jimmy Carter, and includes world leaders, former heads of state, conflict resolution practitioners, Nobel Peace Prize laureates, representatives of international organizations, governments and nongovernmental organizations. The Conflict Resolution Program (CRP) monitors many of the world's armed conflicts to better understand the histories, primary actors, and possible resolutions to the conflicts. If the situation arises, President Carter mediates directly and most recently, the CRP has worked on projects in the Baltic's, Bosnia-Herzegovina, North Korea, Sudan, Liberia and Uganda. The Carter Center is also widely recognized for its work in the civil war conflict between Ethiopia and Eritrea. The INN was launched with the purpose of finding non-military means of reducing armed conflicts, and preventing the escalation of lesser-scale conflicts into armed ones. The INN's model for intervention depends mainly on the country and its culture. When INN Secretariat members identify a conflict that might needs intervention and mediation, they design an overall strategy for managing a mediation process based on the situational characteristics of the conflict.

Eritrea/Ethiopia Case Study

Preliminary Studies

The INN began its concentration on the Ethiopian/Eritrean conflict almost one year before it convened the parties. In the fall of 1988, the Ethiopian/Eritrean conflict was considered as one of the most “hot spots” of the world. The INN Secretariat conducted an analysis of the historical, political, sociological and economic aspects of the conflict. This included an elaborated review of the parties of the conflict in order to gain a better understanding of the perceptions they had about themselves and each other. Furthermore, they conducted a number of preliminary interviews with scholars, policy analysts and relief organizations to better understanding the cultural differences of the parties. During the early stages, they began talking with Track I diplomatic entities in order to follow-up on the actual situation of the conflict. The INN maintains that conflicting parties must invite them to intervene and must want to seek an end to conflict. In this case, neither party extended the invitation due to the difficult nature of the conflict. So, in conjunction with a relief mission to the Horn of Africa, INN mediators met with the leadership of both sides and they both agreed to the mediation.

Mediation Approach

The INN negotiators developed a multiphase approach to work with the parties. This approach called for simultaneously conducting a bargaining strategy, a single text negotiating approach and a joint problem solving approach.

The bargaining strategy involved President Carter as the master negotiator using bargaining strategies to keep the parties at the table and move them toward agreements they had previously rejected. Carter's political clout was most important as he used his influence to go to the media with progress reports as a means of holding each party its responsibility towards general opinion.

The single negotiating text strategy was employed when Carter worked with each delegation or representative of a delegation alone. He would show a working draft document to the delegation chairperson and call for comments until acceptable working documents were created.

The joint problem-solving strategy was most often employed in private sessions and off-the record discussions. The key to this approach is to build trusting, personal relationships framed on the shared problem that all involved, including the mediation team, needed to have resolved.

All members were seen as partners in the process of problem solving. While the INN's first attempt to resolve the conflict in Ethiopia/Eritrea failed, it did bring enormous attention to the conflict which stimulated grassroots pressure for change

Mediation for Medical Insurance

Health insurance disputes often occur between the health insurance companies and their clients. Sometimes they are resolved by simple negotiation where each side will set their demands and both will try to reach to an agreement. When a simple negotiation doesn't suffice, parties may resort to court or alternative dispute resolutions such as mediation.

The traditional method to resolve health insurance disputes was in a court of law. The expensive fees set by lawyers and the time consuming process of courts that may or may not reach a “good enough” settlement has lead disputants to resort to mediation where a possibility of a win-win, rather than a win-lose, situation seems possible. In mediation, the parties have control over the outcome.

Mediation in health insurance, similar to mediation in other fields, will involve a neutral third party who is a trained professional. Other participants include parties, parties' counsel, and other vital individuals such as liability insurance representatives who have the authority to offer liability insurance funds in exchange for settlement of the case against the insurance health care providers. The mediation process is strictly private and confidential. In case the mediation failed and parties have to resort to court, the mediator can't be used as a witness and no statements said during the mediation session(s) are allowed to be disclosed in court. The mediator doesn't have the right to pass information from one party to the other unless given the permission to do so. This way, parties can communicate freely with the mediator where he/she will be better informed and will be given the proper tools to help him/her reach a better agreement. (Russell G Thornton 2003)

One of the concerns in health insurance mediation is whether the health care provider allows the liability insurance carrier to make offers of settlement. Most professional liability insurance policies do not allow the insurance carrier to propose any offer of settlement without an approval from the health care provider. Whether this is an attempt to avoid mediation should be considered based on each individual case. (Russell G Thornton 2003)

To make best use of the mediation process, both parties should be willing and ready to not only listen, but to hear and consider each other's statements and arguments and defend their respective actions to the mediator. If the health care provider shows interest in settling the claim, the provider will try to resolve the case with as little as possible while the provider's client will try to maximize the benefits. To get the most beneficial settlement or any settlement at all, either party will try to win the mediator over their side. The mediator should remain impartial, but after all, he/she is human and the mediator will be more likely to resolve the dispute along the lines of what is proposed by the party with the better reasoned position. This reasoned position can be achieved during the private meetings, caucus, held between the mediator and each party separately. The party that is most knowledgeable and committed to his/her position is most likely win the mediator over during the mediation.

For the parties to be committed to the process they should study and review the information provided by the opposing party in order to reach a reasonable settlement. It is of no use to mediate a case in which the parties are not committed to the process because of lack of knowledge or understanding.

Comparison between Mediation for Construction and other Fields

As mentioned previously, mediation can be used is solving any kind of dispute in any field. This ability for mediation to help disputants reach solutions is based on a process through which the mediator acts. The process of mediation has some general guidelines to be used in any type of dispute and in any field. In addition to these guidelines every type of dispute or field has some special features and stages that are custom tailored to meet the needs of each case and field leading to a series of similarities and differences in the mediation process.

Similarities between Mediation for Construction and other Fields

  • Mediation cannot be used in any field without the parties' agreement.

  • The mediator has to be a neutral person or neutral party that all parties agree on.

  • Confidentiality is one of the bases in all types of mediation.

  • Mediation in any field includes private (caucus) meetings.

  • The aim of mediation in all fields is to achieve reconciliation.

  • Mediation in any field can end with one of the following three; Full, partial, or no agreement.

  • Any mediation agreement is not necessary a written agreement it could be a verbal agreement.

  • Any mediated outcome is unbinding before being approved by the court. (Not applicable in Sulha)

Differences between Mediation for Construction and other Fields

Differences between Mediation for Construction and Mediation for Social Affairs

Differences between Mediation for Construction and Sulha

  • Sulha process, especially if related to a murder, includes much more feelings and emotions than construction mediation.

  • Once parties agree to participate in a Sulha, they are bound to accept the outcome.

  • Joint meetings are rarely used in a Sulha.

  • Strong pressure from the community or Jaha may be imposed on the disputants to participate in a Sulha.

  • In the Sulha, venting of grief, anger and frustration is heard only by the Jaha.

  • The Sulha agreement, gains its strength from the Jaha's power in the community and the threat of the disputants losing their respect and social standing by refusing to abide by the verdict.

  • The threat of the disputants losing their respect and social standing also provides a motivation for them to carry out the terms of the Sulha agreement.

  • Confidentiality in a Sulha is more like a kind of censoring for negative information given about the other party in order to help increase harmony between the two sides and not to protect the confidentiality of some information by any of the parties involved, as in mediation.

  • In a Sulha, if any of the disputants feels that a member of the Jaha is biased they have the right to put a veto on his membership to the Jaha, but they cannot leave the Sulha. Whereas in mediation if any party feels that the mediator is biased they can simply end the mediation.

  • Jaha members traditionally are unpaid and perform all their work voluntarily, unlike mediators.

Differences between Mediation for Construction and Marital Mediation

  • Marital mediation includes much more emotions than construction mediation.

  • Marital mediation involves several sessions each between 1 ½ and 2 hours, whereas construction mediation disputes are usually solved in 1 session that spreads a whole day.

  • The process in marital mediation may be more important than the results since the main goal of the mediation is to improve the communication among couples who already decided that they want to stay together. While in construction mediation the result is the main factor for a successful mediation.

  • Construction mediation disputes are mainly about financial issues, while marital mediation disputes are mainly about communication problems among couples.

Differences between Mediation for Construction and Mediation for Politics

  • Mediation for politics is a very lengthy process when compared to mediation for construction disputes.

  • The mediator in political disputes is usually a group or organization (United Nations, Arab League, etc...), while in construction the mediator is an individual or maximum two individuals (co-mediation).

  • In political disputes the mediator proposes ideas and solutions, while in construction disputes the mediators' role is to facilitate the communication between parties.

  • The mediator in politics can use his authority and position to put pressure on one of the parties, while in construction disputes this can be easily faced by leaving the mediation.

Differences between Mediation for Construction and Mediation for Medical Insurance

  • The parties involved in mediation for medication insurance are usually the health care provider and its client. This is different than that of the construction field where parties might include engineering consultants, contractors, clients, public authorities, …

  • One of the individuals present in the health care provider party is a liability insurance representative who may or may not have the authority to offer liability insurance funds in exchange for the settlement. This might make the mediation process more complicated because if the liability insurance representative doesn't have any authority, he/she will have to resort to the health care provider for approval on any offer of settlement.

  • As a health care provider, the primary interest is to maximize profits and resorting to a settlement means that the provider will try to resolve the case with minimum funds while the provider's client will try to maximize benefits and funds.

Recommendations

Based on the literature review, it can easily be realized that disputes in any field are not necessarily for financial reasons.

After comparing the construction mediation versus other types of mediation, we came up with the following strategy.

Technical mediation:

In most of the mediation, the mediator is a specialist in the disputed issues. In construction mediation, many times we have a lawyer or any other person who is not directly related to construction playing the role of mediator.

Take the political mediation for example, in all cases; we have political parties or organizations who directly work with international affairs that run the mediation process. This helps a lot in generating new and concrete options especially that both parties are also the political parties themselves.

In construction, most disputes are about money. So the mediation process goes on without solving the root of the problem. What we recommend is to have a technical mediation before the real mediation.

In the technical mediation we will have only engineers, architects and any other technical advisor who will start the mediation process without even mentioning the money dispute. They will sit and try to mediate on the best alternative to solve the solution. Technical mediation will allow generating many other options since the root of the problem is being solved. Having done with technical mediation, traditional mediation can then go on where only negotiation of the price can happen.

Technical mediation for construction disputes can help a lot in the process because traditional mediation will get only the decision makers, with the recommendation of the technical advisor and they will dispute over it without looking and searching for better options. But when the technical advisors meet and work out the details together, people with the proper authority will then negotiate the price during a traditional mediation. The traditional process has proven to be efficient were construction disputes should happen in one day in contrast with other types which may happen in many days.

Summary and Conclusions

This literature review has attempted to increase the understanding of mediation and its usage in different fields. Starting with a brief historical review of the act of mediation, its progress, and spread throughout history into several fields. The use of mediation in the fields of social affairs, politics, medical insurance, and construction was explained in a way to highlight the process of mediation in each of these fields. Based on the mediation process explanations in each field mentioned previously, a list of similarities among mediation processes in all fields was generated. Then a list of differences between each of the fields discussed and mediation for construction disputes, which served as a benchmark for our comparison, was generated.

Finally, it can be concluded that the act of mediation that is currently being used in solving disputes in many fields is based on general procedural guidelines to be followed in all these fields. This process is submitted to minimal modifications based on the nature of the dispute and the field it belongs to.

References:

- Bates, Albert, and Holt Tyrone. “Large, Complex Construction Disputes: The Dynamics of Multi-Party Mediation”. Dispute Resolution Journal, May / July 2007.

- Boardman, Susan; Fiske, John; Israel, Laurie; and Neumann, Ken. “Marital Mediation: An Emerging Area of Practice”. www.mediate.com/articles, May 2009.

- Brooker, Penny. “Criteria for the appropriate use of mediation in construction disputes”. International Journal of Law in the Built Environment, Vol.1, No.1, 2009.

- Chau, K.W. “Insight into Resolving Construction Disputes by Mediation / Adjudication in Hong Kong”. Journal of Professional Issues in Engineering Education and Practice, April 2007.

- Cheeks, Richard. “Multistep Dispute Resolution in Design and Construction Industry”. Journal of Professional Issues in Engineering Education and Practice, April 2003.

- Cheung, Sai On; Seun, Henry; and Lam, Tsun-lp. “Fundamentals of Alternative Dispute Resolution Processes in Construction”. Journal of Construction Engineering and Management, September / October 2002.

- Goodkind, Ronald. “Mediation of Construction Disputes”. Journal of Performance of Constructed Facilities, Vol.2, No.1, February 1998.

- Gorton, Christopher. “Using Mediation to Resolve Disputes in Health Care”. The Physician Executive (Conflict Management) July / August 2005.

- Greatbatch, David; and Dingwall, Robert. “Argumentative Talk in Divorce Mediation Sessions”. American Sociological Review, Vol.62, No.1, February 1997.

- Harmon, Kathleen. “Conflicts between Owner and Contractors: Proposed Intervention Process”. Journal of Management in Engineering, July 2003.

- Loulakis, Michael. “High Stakes Construction Mediation: Does the “Hype” Justify the “Hope”. Journal of Professional Issues in Engineering Education and Practice, July 2004.

- Pely, Doron. “Resolving Clan-Based Disputes Using the SULHA, the Traditional Dispute Resolution Process of the MIDDLE EAST”. Dispute Resolution Journal, November 2008 / January 2009.

- Peckar, Robert. “Technical Mediation-A New Tool for Resolving Complex Construction Disputes”. Dispute Resolution Journal, May / July 2005.

- Silberman, Allen. “Mediation is not Arbitration”. Journal of Management in Engineering, July / August 1997.

- Steen, Richard. “Five Steps to Resolving Construction Disputes without Litigation”. Journal of Management in Engineering, July / August 1994.

- Thornton, Russell G. “Mediation,” BUMC Proceedings, 16: 127-129, January 2003.

- Veronica Chu, Pin-Yu; and Fehling, Michael. “Cognitive Conflict Resolution: Mediation Analysis and Strategies”. IEEE 1994.

- Yiu, Tak Wing; Cheung, Sai On; and Mok Fung Man. “Logistic Likelihood Analysis of Mediation Outcomes”. Journal of Construction Engineering and Management, October 2006.

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