Scottish construction lawyers’ awareness and experiences of alternative dispute resolution

Abstract

It is widely acknowledged that lawyers generally perform a gate-keeping role, advising clients on the most appropriate form of dispute resolution for particular cases. Is it reasonable to believe that the attitudes of the legal fraternity in Scotland create a real limit on what could be implemented by a government that seeks to promote modern methods of dispute resolution as part of its civil justice reform agenda? Drawn from questionnaire- and interview-based research, the principal aim of this paper is to fill a gap in the literature and establish baseline data on Scots construction lawyers’ awareness, attitudes and experiences of alternative dispute resolution (ADR) and implications for the resolution of construction disputes. There is evidence from the questionnaire survey and participant interviews that more education in ADR procedures and their application could provide further opportunity to develop them as settlement tools in Scotland by building on more positive aspects of responses within the sample analysis. Only some in the legal fraternity have embraced the challenge of what the study has found to be regarded widely as an opportunity. Further education, training and publication of case law involving ADR may be necessary to convince doubters that ADR needs to be part of the menu of methods of dispute resolution for the modern lawyer in Scotland.

UK construction participants’ experiences of adjudication

“…While the process is often described as being a cheaper and quicker option than litigation or arbitration (Agapiou, 2011), adjudication has not always been used in the manner intended and examples of its use in clearly inappropriate situations abound (Riches and Dancaster, 2004). Akintoye et al (2011: p. 610) state the original objectives of the 'HGCRA 1996' Act are being undermined by exploitation of 'loop-holes' stopping the flow of money through the supply-chain; lack of clarity relating to payment resulting in adverse effects on cash flow; increased litigation; and disputes under construction contracts were threatening the viability of individual businesses and eventually would undermine the long-term health of the construction industry.…”

Editorial

“…The second paper, by Andrew Agapiou, stems from questionnaire-and interview-based research with the principal aim of filling a gap in the literature and establishing baseline data on Scots construction lawyers' awareness, attitudes and experiences of alternative dispute resolution (ADR) and implications for the resolution of construction disputes (Agapiou, 2011). There is evidence from the questionnaire survey and participant interviews that more education in ADR procedures and their application could provide further opportunity to develop them as settlement tools in Scotland by building on more positive aspects of responses within the sample analysis.…”