The effectiveness of dispute resolution techniques as used in hong kong

The effectiveness of enmity resolve techniques as used in hong kong plait in the pastYears ag star a aspect project was a carnal knowledgely simple arrangement. The proprietor retained an architect or calcu tardy to develop the introduction and plant the specifications for the desired project. The makeer and architect or engineer then booked the general affirmer to perform the physical twirl of the exertion leaving the modes of performance to him or her. Contractors and sub affirmers were relatively straight forward, simple agreements without extensive clean-handed clauses. At that clock, contracts were completed with appropriate time extensions with liquidated damages or give for delay argon depending of who was responsible for delay. Usually the work was of excellent grapheme because all parties of the team were working unitedly. Nowadays, everything among the verbalism perseverance move multifactorial and likewise resulted in a abstruse junk dissolver wh ether for a answer of minor publicize. social system Claims In many construction projects, the melodic phrase always arisen among the parties, i.e., in among the contractor, consultant, material supplier and employer and in coition to the conditions of contracts, construction design, buildability, construction methodology and construction standard and etc. excessively the argument entrust gradually step into a claim as the parties atomic number 18 intents to preserve their rights, interest and responsibilities as the argument of the works lead behind always result delay and disruption to the construction progress and so incurred in an additional time and comprise to the project under several(prenominal) particular quite a little. Nowadays, the construction projects atomic number 18 becoming more and more complex due to the innovation, evolution and technology development in the fabrication, the agreement and rendering of the project requirement may differs among the parties (Malak and Saadi and Zeid 2002). In the meantime, the increased complexity of construction project, the construction goes, specification, documents and conditions of contracts has been contribution to high possibilities of conflict that results a higher relative frequency of claims issue. thither are many different types of construction claims are into categories relative to terms and generally defined in a contract. The parties are essential to puzzle out the claim in accordance with the requirement specified in the main contract. Normally the claims are raised by the contractor as they were the first caller acknowledge the construction progress is delay or disrupted by some kinds of all the liket and responsible to theme the circumstances for reporting to the employer. The employer will then require assessing the claim issue. However, the basis of the realisation of claims issue is often non exhaust enough by the contractor and therefore the employer will read a problematicaly during the judging carry out that results an adverse desire to the claimant, which is the contractor. Consequently, the claims croupenot satisfy the claimant by extension of time or additional m unmatchabley during the construction period and become a higher degree of gainsay that is requires further altercate response. All claims have the potency to be time con unitinging and expensive once the claims has different sym directioniseing among the employer and contractor (Barnard 2005). To reduce the potential time cost and expensive, comm plainly the associated parties in the claims will proposed to a fray declaration, i.e., Litigation, Mediation, Conciliation, Adjudication, arbitrement and etc. for minimize the need slight cost. Though these quarrel final results are very common, the effectiveness is questioned by the industry due to the higher cost and time are still indispensable for passageing these resultant roles. Research Aim, Objecti ve(s), HypothesesAIMThe aim of this research root is to analyze the effectiveness of dispute resolution techniques as used in Hong Kong. And, the investigation is concentrate on the criticism and quantifying the process and outcome effectiveness of one of the common use dispute resolution Mediation. OBJECTIVES* To conduct a small freshen of publications relating to the definition and process of Mediation. * To conduct a deprecative review of literature relating to the history of dispute resolution of Mediation in Hong Kong. To review and investigate existing common use of dispute resolutions in Hong Kong.* To research and detail the actual processes, the difference in between these dispute resolutions, analyse the payoff and dis value of these dispute resolutions and gear up the general result of these resolutions. * To take up data by face to face interview done the pro body that has experience involves in construction claims and interinterintermediation process. * To summerise and analyse the effectiveness of mediation which in the basis of time cost and reflection by the disputants. * To draw conclusion on the quantified effectiveness of mediation to testify the recognition by the construction industry and adjudicate the coming(prenominal) development of the applicable of mediation. Literature ReviewHow claims propagate to a disputeA claim may be defines as a request, demand, operation for payment of notification of presumed entitlement to which the (claimant), rightly or wrongly at this stage, considers himself entitle and in respect of which an agreement has not yet been devoteed (Barber and Hughes, 1992). For protect their own interest, the claimant will promptly reserves his rights to claim and presents a detailed vizor of the claims only a the need of the project where they butt joint take advantage of any losses and delays and incorporate them into a claims. Therefore, the prevalence of the reservation of rights commence a constru ction claims. Normally, the contractor is the host and navigate the claims as the transform to the project is always request by their employer, owner, consultant, employer or employers representative and the confirmation of contractor is breach the contract by the employer is often a difficult task (Hassanein and Nemr 2007).The change orders were the most prevalent causes of claims. The frequent appearance of a change order on a project is due to the engineer do a less(prenominal) thorough job in the design and planning stage and thereafter, the employer try to minimum the costs by not planning the project as real-time since initial planning. As a result the employer is put in a position where they are less likely to anticipate adverse conditions before they arise and are less capable of dealing with the variable. Accordingly, numerous slip of papers had been reported about the contractor was have direct inductions from the employers representative or consultants due to their l amentable management in the pre-contract phase and outdate realization of the project. The consequence was additional incurred expenses. The increasing scope of work and poorly coordinated designs result change order and easier to propagate a construction claims. In addition, the differing site conditions, defective construction documents, suspensions of the work at the direction of the employer or consultant, wrongful delays in handling shop drawings, late deliveries of owner-furnished equipment and materials, interference by former(a) prime contractors, lack of site approach path and etc. are easier to constitute a contractor claims once the poor management practice occurs in the employers team. The construction project is often retard by the change and a claim may arise on account of a delay disruption. The nature of the construction claims leads to adversarial family relationships regarding impacts and changes and often results in disputes.Back background signal of Mediation The settlement of disputes arising from construction industry by methods other than litigation is common practice. The main reason for this is, where the substantial questions of the dispute are matters of fact rather than of law, a final and conclusive decision eject be obtained in a manner which is quicker and cheaper than the formal legal. kink disputes have used mediation since 1985 (Phillips, 1997). Compared to litigation, mediation has proved to be a faster, less expensive, more confidential, and more satisfactory way to resolve disputes. There is a national trend in favor of alternative methods of dispute resolution and away from the trench warfare style of litigation which has become so costly in recent decades. Mediation reflects a peddle in the balance of power between employers and their lawyers. In scorched public litigation the dispute is in the hands of litigators whose strength lies in operation practice and mammoth discover regimens. Mediation cuts done the pos turing and maneuver of litigation to get the merits of the dispute, where the employer is more of an authority, and to get to settlement negotiations, where the employer controls decision making (Fisher 1994). In fact, Mediation is a popular mode of dispute resolution in the United States (Bush and Folger 1994). As it is a non binding, consensual process of resolve conflicts through settlement conferences expedited by an impartial third party who facilitates negotiations (stories and their interpretation) between the disputants (Gillie et al. 1991Rondeno and Rumbaugh 1999). Mediation may be considered a form of distributive justice, even though the contending parties control the discussion of the conflict and is ultimate resolution. It end be entered into voluntarily or as a result of a hook order, and it does not bind the parties in any way other than by mutual agreement. Obviously, the mediation has been introduced and widely applied as a settlement method of dispute to constru ction industry for more than twenty years. As mediation describes a voluntary process which either side may abandon at any time without prejudice, whereby each side to a dispute is brought together before a neutral intergo-between, whose function is to assistanceance the parties to arrive at common position by joint unaffixed session and private caucus (Hills 1995). During this process the mediator acts only as catalyst, not expressing his or her own opinion and not disclosing confidential information imparted by one of the parties, to the other. Through this process the parties move closer together until they reach a common position when settlement is reached. Because the mediation process itself is non binding and entirely without prejudice, it is necessary to record the agreement, in contract form, if it is to have legal effect. Although mediation is not regulated process, some rules do exist and are published by a few organizations that is applicable to Hong Kong constructi on industry. For example, the saying Industry Mediation Rules published by the National Arbitration Committee in the United States, and the Hong Kong Government Mediation Rules published by the Government of Hong Kong. Mediation ProcessThe Mediation is begins with the agreement of disputants that intents to settle certain amount of money and employ a mutually agreed mediator to commence mediated meeting to define issues and confirm each sides commitment. engagement to mediate in the event of a dispute is either through terms of the contract (such as a mediation clause), or by mutual consent when the dispute arises. More commonly, one party approaches the mediation company to begin mediation hold oning. A representative then contracts the other side inviting them to cooperate in a mediation and consequence assists the disputants in negotiating a settlement. This is a form of collective decision making in which the mediator facilitates voluntary agreements between the parties in d ispute. During this decision making process, the mediator compiles information, evaluates alternatives, and makes suggestions to the disputants aiming for a consensual agreement. The mediator will meet each party in turn to assist them to examine and highlight the respective strengths, and weaknesses of their part and, if he is so authorized, carry offers from one side to the other until the parties reach a common position, as a result, the mediator helps in prison-breaking barriers and pulling communalities. In these contexts, mediation is regarded as nonthreatening, and effective in suppressing or even settling construction dispute. Thus, mediation is used because of the prospect of achieving settlements that are mutually satisfying, win-win situation, cost effective, flexible, speedy, confidential, and voluntary. At this point a settlement is usually agreed and, if the parties so wish, a contract will be drawn up to make the terms of the settlement legally binding (Hills 1995) . wherefore Mediation This method is aimed to employ an independent third party for assist to agreed certain specified desires from the disputants in a short time and most likely they will satisfy the mediation result as the lightly litigation is applied and cost saving in plundervas with other dispute resolutions. And, mediation can restart the usual course of action of construction claim resolution by carving out one or more of the simpler claims for early agreement. Even if the parties cannot agree that those compromises will be paid right away, at least they can stipulate that they will be paid as part of any arbitration distribute or court judgment. The real value of such partial settlements is that they collapse the atmosphere. They demonstrate to each side that the other is acting on near(a) faith and deserves some credibility. A good mediation advocate helps identify the clients real interests and needs, so that it is possible for the parties to reach a bargain. For ex ample, a contractor may be less interested in money than in having additional time to complete the job, or in obtaining future work, piece of music the owner wants the project completed as quickly and as economically as possible. Because the parties craft their own settlement, they are more likely to love their agreement voluntarily. Mediation also provides a forum wherein the aggrieved party can present its position or defense directly to the opposing party rather than through an attorney (Trantina 2001), thereby giving the aggrieved party theatrical role or recognition of being heard. Also, mediation can preserve the partys relationship (Lederman 1997). Mediation display of commercial acumen and far from being soft, it is a continuous process of structured, condensed, guided and intense negotiation requiring quickness of mind, tractability and imaginative thinking. And mediation can be used at the same time as litigation or arbitration procedures or can replace litigation. So it is possible to litigate or arbitrate to enter serious intentions but to negotiate with mediation to get a better result.Even the mediation fails, it has more benefits than risks. Mediation can be tried and true fast and at little extra cost. Parties are free to leave the process if it is unproductive (Harmon 2003). At the same time, using mediation helps clarify the issues, helps with preparation for trial or further negotiations and encourages a pragmatic assessment of the grounds more rapidly than the adversarial process. ConclusionThe principle finding of this paper is aimed to have a brief review of an understanding of mediation in construction industry. An investigation is also held for realised the consequential effect is resulted by construction claims to the industry. Nevertheless, the outcome of initial finding on the literature review is not ideal as original thought. The construction claims detailed in many literature papers are mainly focusing on the claims effec t how delay and disrupt the project that very limited reports are specified, i.e., the outcome effect of mediation, the problematic occurs during the mediation.For the research aim regarding dispute resolution in this report is assess the effectiveness of the mediation. As this report is only focusing the dispute resolution on Mediation, quite a hardening of literature reports actually already have concluded the effectiveness of this resolution methods. Unfortunately the concluded result is limited to list out the advantage and disadvantage of this resolution and leads to have a personal (author) bias which seems not neutrally enough(Yiu Cheung Mok 2006). Furthermore, it is not difficult to have the knowledge of the process of dispute resolution but the key information or real mediated sequel is hard to obtain. Most likely the reason is mediation is not uncivil to public. As a result, the critical information of real cause for consolidates establishment to this report is rela tively very limited. In summary, the topic actually has a greatly development space as the gap of the above tell research objective do exist in the industry. The general translation on the outcome effect of mediation by limited extension service to real dispute case is the key finding during this investigation of literature review. And as above mentioned the papers are only listed out the particulars of the mediation without any consolidated data, i.e., amount to settle, time consumed and cost of mediation. Accordingly, the mediation drill has not been clear identified for which scale or what kind of disputes. The impediment of data collection is recognised and foreseeable. Thus, the further development of the final report will be initially focusing on the real case data collection and the development of quantify effectiveness of mediation. Methodology ground on the concerning to the objectives of this research paper, the research methodology is considerate to choose combine a case study and face to face interview with associated nonrecreational body in the construction industry who has similar experience that involves in the construction claims and mediation process. The presentation of a case study can reflected the cause and consequence of a claims event as a secure story broad and accordingly indicate how the claims falls into a dispute. From the review of the claims process by a case study method, we can easier to understand the fundamental reason why the claims event is arisen and defining the claims type or determining the validity of claims by the point of view as an impertinent third party. Thereafter, based on the stances of the relevant parties on the claims can evaluate the necessarily of the dispute as the claims somehow is without any contractual ground backup but become as a dispute shortly. For the method of face to face interview that is an effectiveness and straight forward path to obtain the result. The professional bodies who has e xperience on a claims and mediation process are able to tell what the consequence and subsequence of a construction claims and how the dispute resolution process. Moreover, the method for assess the effectiveness of the dispute resolution is by quantified the time cost by these peoples contributed on each case. The case study will select the construction project that has a dispute for detail analysis and illustrate the disputes among the construction industry in Hong Kong. The case study will be considered a recent completed tie project in Hong Kong. This project is one of the longest cable stayed link in the world. The bridge was just completed recently and has 2 years delay from the originally planning. Mediation has had been carried out for settle the claims dispute in early construction stage.For the face to face interviewer selection, it is very depend on the availability of those personnel. Nevertheless, the target interviewer is decide to meet minimum 4 professional body in volved in this project, assuming the key data can be obtained among these professional body.Restraints/LimitationsIn this research paper, it can be foreseeable the difficulty to systemize and identify the dispute nature among the construction industry. Initially, to collect the claims issue event from the as-built real construction project is time consuming and require lots of contacts to meet this objective but the outcome may not be satisfied to achieve the original idea as the industry always keep the claims as a confidential issue and not open to irrelative parties. Eventhough the claims was settled completely and not necessary proceed to kinds of litigation or arbitration, the information regarding the settlement definitely involves a sum of monies that the industry still inclined not to release the details as a reference for any further similar claims.Whilst the peoples who involves in the claims process of a construction project are very limited to Claims consultancy, Q.S. or senior manager. These peoples are always difficult to reach and as the industry norms, the fact of the claims event may not present thorough. It means the realistic of claims event may be questionable due to the limitation of the sources.Nevertheless, for change the evaluation of the effectiveness of the dispute resolutions is quantifying the time cost and feedback from the disputants, further taproom the applicable frequency of this resolution. 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