Dispute resolution outside of courts: procedural justice and decision acceptance among users of ombuds services in the UK

Attitudes towards legal authorities based on theories of procedural justice have been explored extensively in the criminal and civil justice systems. This has provided considerable empirical evidence concerning the importance of trust and legitimacy in generating cooperation, compliance and decision acceptance. However, not enough attention has been paid to attitudes towards institutions of informal dispute resolution. This paper asks whether the theory of procedural justice applies to the alternative dispute resolution (ADR) context, focusing on ombuds services. What are the predictors of perceptions of procedural justice during the process of dealing with an ombuds, and what factors shape outcome acceptance? These questions are analyzed using a sample of recent ombuds users. The results indicate that outcome favorability is highly correlated with perceived procedural justice, and both predict decision acceptance.

Change in UK construction: Moving towards supply chain collaboration

There has been an increasing highlight of supply chain collaboration in UK construction. However, few studies have provided evidence for the current status. Based on the analysis of over 100 questionnaire responses in this research, it is found that the UK construction industry as a whole is experiencing an important change and moving towards supply chain collaboration. On the other hand, an unbalance is found for the change movement. In addition to the questionnaire survey, a series of expert interviews help to explore the specific characteristics of supply chain collaboration in construction and provide practical implications for collaboration strategy implementation.

An evaluation of the sustainability of agreements reached through mediations conducted by the dispute resolution centres of the Department of Justice and Attorney General, Queensland between 1999 to 2003

In 1990 the Dispute Resolution Centres Act, 1990 (Qld) (the Act) was passed by the Queensland Parliament. In the second reading speech for the Dispute Resolution Centres Bill on May 1990 the Hon Dean Wells stated that the proposed legislation would make mediation services available “in a non-coercive, voluntary forum where, with the help of trained mediators, the disputants will be assisted towards their own solutions to their disputes, thereby ensuring that the result is acceptable to the parties” (Hansard, 1990, 1718). It was recognised at that time that a method for resolving disputes was necessary for which “the conventional court system is not always equipped to provide lasting resolution” (Hansard, 1990, 1717). In particular, the lasting resolution of “disputes between people in continuing relationships” was seen as made possible through the new legislation; for example, “domestic disputes, disputes between employees, and neighbourhood disputes relating to such issues as overhanging tree branches, dividing fences, barking dogs, smoke, noise and other nuisances are occurring continually in the community” (Hansard, 1990, 1717). The key features of the proposed form of mediation in the Act were articulated as follows: “attendance of both parties at mediation sessions is voluntary; a party may withdraw at any time; mediation sessions will be conducted with as little formality and technicality as possible; the rules of evidence will not apply; any agreement reached is not enforceable in any court; although it could be made so if the parties chose to proceed that way; and the provisions of the Act do not affect any rights or remedies that a party to a dispute has apart from the Act” (Hansard, 1990, 1718). Since the introduction of the Act, the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney General has offered mediation services through, first the Community Justice Program (CJP), and then the Dispute Resolution Centres (DRCs) for a range of family, neighbourhood, workplace and community disputes. These services have mirrored those available through similar government agencies in other states such as the Community Justice Centres of NSW and the Victorian Dispute Resolution Centres. Since 1990, mediation has become one of the fastest growing forms of alternative dispute resolution (ADR). Sourdin has commented that "In addition to the growth in court-based and community-based dispute resolution schemes, ADR has been institutionalised and has grown within Australia and overseas” (2005, 14). In Australia, in particular, the development of ADR service provision “has been assisted by the creation and growth of professional organisations such as the Leading Edge Alternative Dispute Resolvers (LEADR), the Australian Commercial Dispute Centres (ACDC), Australian Disputes Resolution Association (ADRA), Conflict Resolution Network, and the Institute of Arbitrators and Mediators Australia (IAMA)” (Sourdin, 2005, 14). The increased emphasis on the use of ADR within education contexts (particularly secondary and tertiary contexts) has “also led to an increasing acceptance and understanding of (ADR) processes” (Sourdin, 2005, 14). Proponents of the mediation process, in particular, argue that much of its success derives from the inherent flexibility and creativity of the agreements reached through the mediation process and that it is a relatively low cost option in many cases (Menkel-Meadow, 1997, 417). It is also accepted that one of the main reasons for the success of mediation can be attributed to the high level of participation by the parties involved and thus creating a sense of ownership of, and commitment to, the terms of the agreement (Boulle, 2005, 65). These characteristics are associated with some of the core values of mediation, particularly as practised in community-based models as found at the DRCs. These core values include voluntary participation, party self-determination and party empowerment (Boulle, 2005, 65). For this reason mediation is argued as being an effective approach to resolving disputes, that creates a lasting resolution of the issues. Evaluation of the mediation process, particularly in the context of the growth of ADR, has been an important aspect of the development of the process (Sourdin, 2008). Writing in 2005 for example, Boulle, states that “although there is a constant refrain for more research into mediation practice, there has been a not insignificant amount of mediation measurement, both in Australia and overseas” (Boulle, 2005, 575). The positive claims of mediation have been supported to a significant degree by evaluations of the efficiency and effectiveness of the process. A common indicator of the effectiveness of mediation is the settlement rate achieved. High settlement rates for mediated disputes have been found for Australia (Altobelli, 2003) and internationally (Alexander, 2003). Boulle notes that mediation agreement rates claimed by service providers range from 55% to 92% (Boulle, 2005, 590). The annual reports for the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General considered prior to the commencement of this study indicated generally achievement of an approximate settlement figure of 86% by the Queensland Dispute Resolution Centres. More recently, the 2008-2009 annual report states that of the 2291 civil dispute mediated in 2007-2008, 86% reached an agreement. Further, of the 2693 civil disputes mediated in 2008-2009, 73% reached an agreement. These results are noted in the report as indicating “the effectiveness of mediation in resolving disputes” and as reflecting “the high level of agreement achieved for voluntary mediations” (Annual Report, 2008-2009, online). Whilst the settlement rates for the DRCs are strong, parties are rarely contacted for long term follow-up to assess whether agreements reached during mediation lasted to the satisfaction of each party. It has certainly been the case that the Dispute Resolution Centres of Queensland have not been resourced to conduct long-term follow-up assessments of mediation agreements. As Wade notes, "it is very difficult to compare "success" rates” and whilst “politicians want the comparison studies (they) usually do not want the delay and expense of accurate studies" (1998, 114). To date, therefore, it is fair to say that the efficiency of the mediation process has been evaluated but not necessarily its effectiveness. Rather, the practice at the Queensland DRCs has been to evaluate the quality of mediation service provision and of the practice of the mediation process. This has occurred, for example, through follow-up surveys of parties' satisfaction rates with the mediation service. In most other respects it is fair to say that the Centres have relied on the high settlement rates of the mediation process as a sign of the effectiveness of mediation (Annual Reports 1991 - 2010). Research of the mediation literature conducted for the purpose of this thesis has also indicated that there is little evaluative literature that provides an in-depth analysis and assessment of the longevity of mediated agreements. Instead evaluative studies of mediation tend to assess how mediation is conducted, or compare mediation with other conflict resolution options, or assess the agreement rate of mediations, including parties' levels of satisfaction with the service provision of the dispute resolution service provider (Boulle, 2005, Chapter 16).

Assisting future lawyers to conceptualise their dispute resolution advocacy role

This article discusses the key concepts that underpin an elective subject, Dispute Resolution Practice, offered in the Queensland University of Technology undergraduate law curriculum. They were conceptualised during a Teaching Fellowship when research was conducted into how to assist future lawyers to conceptualise their dispute resolution advocacy role. The unit also contains the majority of content recommended in the recent National Alternative Dispute Resolution Advisory Council Report, “Teaching Alternative Dispute Resolution in Australian Law Schools”. The environments in which lawyers operate and the knowledge and skills they require to represent clients in negotiation, mediation and conciliation processes will be examined.

The development of an effective and efficient dispute resolution processes for strata scheme disputes in peninsular Malaysia

Dispute resolution in strata schemes in Peninsular Malaysia should focus on more than just "settlement." The quality of the outcome, its sustainability and its relevance in supporting the basic principles of a good neighbourhood and self-governance in a strata scheme are also fundamental. Based on the comprehensive law movement, this thesis develops a theoretical framework for strata scheme disputes within the parameters of therapeutic jurisprudence, preventive law, alternative dispute resolution (ADR) and problem-solving courts. The therapeutic orientation of this model offers approaches that promote positive communication between disputing parties, preserve neighbour relations and optimise people's psychological and emotional well-being.

Teaching dispute resolution ethics in the law curriculum

Dispute resolution processes such as mediation are now central to contemporary legal practice. For this reason it is critical that the law curriculum includes instruction on mediation ethics, so that law graduates enter the profession equipped to deal with ethical dilemmas arising in this context. However, our recent content analysis of the unit outlines for professional responsibility subjects in Australian law schools indicates that this important area of legal ethics is often excluded from the curriculum. In most Australian law schools, dispute resolution subjects (where mediation ethics might also be considered) continue to be offered as stand-alone electives in the law degree. This means that many law students are graduating without the ethical knowledge and judgment-making skills needed in dispute resolution environments. This is contrary to the intentions of the Threshold Learning Outcomes for Law. This paper argues that the current paucity of mediation ethics instruction in the Australian law curriculum is problematic, given mediation’s relevance to contemporary legal practice. The paper discusses the importance of including mediation ethics in the law curriculum, and the importance of dispute resolution more broadly as a mandatory component of the law degree in Australia. It offers an outline of a possible mediation ethics module that could be included in professional responsibility subjects.

Teaching dispute resolution in the first year for law student well-being

At the QUT Law School, the most recent curriculum review responded to an increasing demand from the profession for law graduates to be equipped with dispute resolution knowledge, skills and attitudes. From 2015, a compulsory dispute resolution subject will be a critical part of an intentionally designed core first year curriculum. It is important for the Law School at QUT that no graduate of the new curriculum will leave our institution without real world dispute resolution knowledge and skills. This initiative is also grounded in evidenced-based research about the benefits for student well-being that derive from the subject content and pedagogy of dispute resolution. This paper explains why teaching dispute resolution in the first year of the law degree is an important strategy for promoting the well-being of law students.

Construction Industry Attitudes to Global Environmental Change: A Comparison with the United Kingdom and Japan

With the continued diffusion of global boundaries coupled with the onset of increased environmental pressure, construction industry attitudes are also shifting. The aim of this paper is to evaluate the construction industry attitudes to global environmental change in both the United Kingdom and Japan. In order to achieve this goal, a qualitative mixed method approach is adopted, encompassing a desk based critique of the literature coupled with an industry interview from both regions. This methodology is adopted with the objective of ascertaining if there are any geographical similarities or differences with the regions in question. The resulting information is analyzed and the results deciphered utilizing mind mapping techniques in the dissemination of the data obtained with the objective of identifying various traits within the data. The results indicate that the United Kingdom and Japan both illustrate various attributes in relation to attitudes towards the global environment. In particular, research indicates that in the Japanese construction industry, there is a distinct lack of enthusiasm shown in construction industry attitudes to counteract environmental challenges currently being faced by implementing sustainable practices, compared to attitudes in the UK construction industry. One of the reasons identified for this, is the lack of leadership provided by the corresponding government, thus resulting in the lack of promotion of sustainable practices in the region. The benefit of this research is that it enables various industry leaders, regardless of geographical location, to actively consider the attitudes and perceptions of those around them, particularly in relation to the sensitive topic of global environmental change within the industry. Where the findings are acknowledged and also utilized, the results should aid in the improvement of the industry on an international scale, while also improving the overall persona of environmental change within the sector.

Online Dispute Resolution: The Next Phase

Ce texte traite de l’évolution des modes alternatifs de résolution de conflit (MARC) en ligne. L’auteur dresse un historique des différents projets de médiation en ligne en passant par ses « débuts » en 1999 lorsque l’Online Ombuds Office (OOO) fut approché pour l’élaboration d’un système de médiation pour les clients d’eBay, par SquareTrade.com, par les règles de l’ICANN, par Cybersettle et Clicknsettle, etc. Il expose ensuite le courrant que prendra la cybermédiation et le cyberarbitrage dans les années à venir. Ainsi, le médium informatique devient lentement une « quatrième partie » aux discussions et peut venir en aide aux arbitres et aux médiateurs dans la gestion et la communication d’informations. De plus les fonctions d’affichages propres aux ordinateurs, c’est-à-dire la possibilité d’incorporer images, graphiques, plans, etc., devront être mis à l’œuvre par les systèmes de MARC en ligne si ceux-ci sont destinés à prendre de l’expansion dans d’autres domaines que ceux leur étant présentement réservés.

Model for fostering trust and building relationships in China's construction industry

Trust is an underlying psychological condition that can cause cooperation or risk-taking. Trust is considered as a predominant feature and a central mechanism in business transactions, especially among Chinese. Trust-based relationships create advantages in conducting business such as lowering cost, shortening duration, and improving performance. Indispensable conditions for trust to arise are relationships and risks. Different risks surface as a result of different levels of relationships. Sustained trust is therefore fostered by various means to counterbalance those risks. In order to assess the links between distinct trust-related features, a model is constructed and tested through a questionnaire survey in China. The findings generally support the model in terms of explaining the dominant relationships, inherent risks, and trust-fostering tools. It is recommended that firms adopt the refined model and utilize successful practices verified in this paper to foster trust and relationships and in turn secure project success.

Servitization and enterprization in the construction industry:the case of a specialist subcontractor

The current economic climate and a continuing fall in output of the UK construction industry has led to falling prices and margins particularly affecting those lower down in the supply chain such as specialist subcontractors. Coen Ltd. is one such company based in the West Midlands. Faced with a need to up its game it has embarked on a business improvement programme concentrating on better operational efficiency, building stronger client relationships and delivering value added services. Lacking appropriate internal resources Coen has joined with Aston Business School in a 2 year ERDF sponsored project to fulfil the transformation programme. The paper will describe the evolution of product- service offerings in construction and link this with the work being carried out at Coen with Aston and outline the anticipated outcomes.

La fonction de l'intervention des tiers en droit judiciaire privé québécois

Cette étude présente une caractérisation du mécanisme procédural de l'intervention des tiers en droit judiciaire privé québécois. Développée en trois volets, elle aborde successivement l'origine historique de l'intervention des tiers, qui révèle sa pérennité et sa longévité (première partie). Un modèle conceptuel de sa forme contemporaine selon lequel son bien-fondé repose sur sa légitimité et son utilité est proposé (deuxième partie). Enfin, une étude critique, dans une perspective sociologique et comparative, de la place de l'intervention des tiers dans les projets de réforme de la procédure civile, expose son incompatibilité avec les modes alternatifs de résolution des conflits et trouve, dans le pouvoir judiciaire de l'ordonner d'office présent la législation étrangère, une assurance contre l'iniquité à laquelle le droit québécois devrait souscrire (troisième partie).

Relationship management as a strategy for supply chain engagement in the civil engineering construction industry

Many studies into construction procurement methods reveal evidence of a need to change the culture and attitude in the construction industry, transition from traditional adversarial relationships to cooperative and collaborative relationships. At the same time there is also increasing concern and discussion on alternative procurement methods, involving a movement away from traditional procurement systems. Relational contracting approaches, such as partnering and relationship management, are business strategies that align the objectives of clients, commercial participants and stakeholders. It provides a collaborative environment and a framework for all participants to adapt their behaviour to project objectives and allows for engagement of those subcontractors and suppliers down the supply chain. The efficacy of relationship management in the client and contractor groups is proven and well documented. However, the industry has a history of slow implementation of relational contracting down the supply chain. Furthermore, there exists little research on relationship management conducted in the supply chain context. This research aims to explore the association between relational contracting structures and processes and supply chain sustainability in the civil engineering construction industry. It endeavours to shed light on the practices and prerequisites for relationship management implementation success and for supply sustainability to develop. The research methodology is a triangulated approach based on Cheung.s (2006) earlier research where questionnaire survey, interviews and case studies were conducted. This new research includes a face-to-face questionnaire survey that was carried out with 100 professionals from 27 contracting organisations in Queensland from June 2008 to January 2009. A follow-up survey sub-questionnaire, further examining project participants. perspectives was sent to another group of professionals (as identified in the main questionnaire survey). Statistical analysis including multiple regression, correlation, principal component factor analysis and analysis of variance were used to identify the underlying dimensions and test the relationships among variables. Interviews and case studies were conducted to assist in providing a deeper understanding as well as explaining findings of the quantitative study. The qualitative approaches also gave the opportunity to critique and validate the research findings. This research presents the implementation of relationship management from the contractor.s perspective. Findings show that the adaption of relational contracting approach in the supply chain is found to be limited; contractors still prefer to keep the suppliers and subcontractors at arm.s length. This research shows that the degree of match and mismatch between organisational structuring and organisational process has an impact on staff.s commitment level and performance effectiveness. Key issues affecting performance effectiveness and relationship effectiveness include total influence between parties, access to information, personal acquaintance, communication process, risk identification, timely problem solving and commercial framework. Findings also indicate that alliance and Early Contractor Involvement (ECI) projects achieve higher performance effectiveness at both short-term and long-term levels compared to projects with either no or partial relationship management adopted.

Analysis of construction dispute review boards

The construction industry has long been burdened with inherent adversarial relationships among the parties and the resulting disputes. Dispute review boards (DRBs) have emerged as alternatives to settle construction-related disputes outside courts. Although DRBs have found support in some quarters of the construction industry, the quantitative assessment of the impact of DRBs has not been adequately addressed. This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large-scale highway agency. Three dimensions of DRB impact were assessed: (1) influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10-year period (2000–2009). Quantitative measures of performance were developed and analyzed for each category. Projects that used DRBs faced reduced costs and schedule growth (6.88 and 12.92%, respectively) when compared to non-DRB projects (11.53 and 28.96%). DRBs were also found to be effective in avoiding and settling disputes; the number of arbitration cases reduced consistently after DRB implementation, and DRBs have a success rate of 97% in settling disputes for which DRBs were used. Moreover, costs of DRBs were found to comprise a relatively small fraction (i.e., approximately 0.3%) of total project budgets. It was concluded that DRBs were effective dispute prevention and resolution alternatives with no significant adverse effects on project performance.

Mediation within Irish Construction Industry: Identifying Success Factors for Appropriate Competencies and Processes

The construction industry notoriously excels at dispute creation both in Ireland and abroad. This paper examines mediation in the Irish construction industry as a means of conflict and dispute resolution. It aims to identify success factors for appropriate competencies and processes required by mediators and other parties operating in the construction industry. Methodology includes a thorough review of the literature, followed by detailed interviews from industry experts to elicit and highlight the core competencies required. To aid in the analysis, qualitative analysis using mind mapping software was used. The findings suggest that facilitative mediation was best suited for the Irish construction industry. 13 and 17 success factors were identified as key skills necessary for a mediator and for a successful mediation process. For the skills, it ranges across behavioural, technical and intellectual skills. The mediation process factors can be split into actions of the mediator and other parties in the dispute. The results are similar to those identified in other countries and provide a good reference point for the development of the global construction industry. By following the findings of this report mediators and parties in dispute can improve processes and be more successful in mediation outcomes as a means of resolving conflicts and dispute.