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Mediation in construction industry?
Zulhabri Ismail1, Jamalunlaili Abdullah2, Padzil Fadzil Hassan3, Rosli Mohamad Zin4.
Private dispute resolution refers to settlement of disputes “other than litigation” which is
not open to the public. This includes mediation, adjudication and arbitration. Of the
three private dispute resolution methods, arbitration and mediation were promoted in
the Malaysian construction industry. Notwithstanding the continuing reliance on
litigation as the approach to solve construction disputes, arbitration was gradually
accepted by the industry. As arbitration is a more favored approach, it was realized that
arbitration can be adversarial. Therefore, a more “friendly” approach to solve disputes
was needed to be considered. Consequently, mediation was introduced and promoted.
However to date, its application has been poor. This paper presents the research which
investigates what is currently the trend in mediation. It was developed on the premise
that the poor response in adopting mediation as a form of private dispute resolution
could be because mediation was poorly conceived and applied. A combined
quantitative research method using the survey and qualitative research method using
semi-structured interviews were adopted for the research. The variables which could
impact on the application of mediation were also investigated. The findings suggested
that, while mediation was generally considered appropriate there were concerns on the
adequacy of its provisions and practice. Views on how this could be overcome were
identified. The conclusions suggested the needs for the industry to re-learn its approach
in the promotion and the application of mediation if it is to be more effective.
Affiliation:
- Universiti Teknologi MARA, Malaysia
- Universiti Teknologi MARA, Malaysia
- Universiti Teknologi MARA, Malaysia
- Universiti Teknologi MARA, Malaysia
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MyJurnal (2021) |
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