Voluntary Mediation as a Tenable Resolution Mechanism for Construction Disputes

Abstract

Mediation has been promoted as a complementary alternative to traditional adjudicatory resolution methods for settling construction disputes. The use of mediation has been promoted for its time- and cost-saving advantages. The voluntary approach is also considered suitable to the spirit of disputing parties settling their own disputes by themselves and is thus considered a prerequisite design of mediation. Nevertheless, the power asymmetry between disputing parties may hinder bona fide mediation. This study examined the importance of voluntary participation in fostering collaborative mediating behaviors. The impact of power asymmetry on the use of voluntary construction dispute mediation was also explored. With data collected from mediation practitioners and the application of principal component factor analysis, constructs for voluntary participation (VP), collaborative mediating behaviors (CMB), and power asymmetry (PA) were developed. Partial least squares structural equation modeling analyses were then used to test the hypothesized relationships. It was found that (1) the practice of CMB would bring about positive mediation outcomes; (2) VP would engender collaborative mediating behaviors; and (3) PA between the disputing parties would have no significant negative impacts on voluntary attempts at mediation or the practice of CMB. These findings were validated by real mediation cases. This study contributes to construction mediation studies by affirming the importance of keeping mediation a voluntary process. With a flexible process, voluntary mediation can be a tenable option for resolving construction disputes notwithstanding the power differentials between the mediating parties.