Utilizing ADR to resolve Construction Disputes:

A quantitative survey of Scottish legal practitioners‟ awareness and

experiences

Andrew Agapiou

Department of Architecture, University of Strathclyde, Glasgow, G4 0NG,

United Kingdom

Email: andrew.agapiou@strath.ac.uk

Abstract:

It is widely documented that legal practitioners perform a gate-keeping role, advising clients on the most appropriate form of dispute resolution for particular cases (Agapiou & Clark, 2010). It would be interesting to ask whether the attitudes of the legal fraternity in Scotland creates a real limit on what could be implemented by a government that seeks to promote novel means of dispute disposal as part of its civil justice reform agenda. Drawn from questionnaire -based research, the aim of this paper is to establish lawyers' awareness, attitudes and experiences of Alternative Dispute Resolution (ADR). Despite the small sample used in this study, there is evidence 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 survey. 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 successful execution may be necessary to convince doubters that ADR needs to be part of the menu of methods of dispute resolution for the modern practitioner. Keywords: alternative dispute resolution, lawyers, Scotland

1 Introduction

There is no doubt that ADR has experienced growth over recent years. The Eversheds‘ survey found 41% of litigants had used ADR in 2000, compared to 30% in 1998. However, it has been concluded ‗that over 96% of the respondents in a 1997 survey by Brooker and Lavers had never used any form of ADR (Brooker and Lavers, 1998). 70% of those respondents who have never used ADR said they would consider doing so, although a surprisingly large proportion (27%) said they did not know…Only 3% (6 of the 229 respondents) said they would not use ADR‘(Gould et al, 1998). By 2001, it would seem that matters had moved forward in respect to the use of mediation. In a postal survey, Brooker and Lavers (Lavers and Brooker, 2001) reported that 66% of respondents had used mediatory techniques to resolve disputes. Similarly, in a 2010 survey of construction lawyers in Scotland, 58% of respondents had working experience of representing a party in at least one mediation case (Agapiou & Clark, 2010). The government has also influenced growth over time. For example in March 2001, the Lord Chancellor pledged that standard government procurement contracts would incorporate clauses to promote the use of ADR to resolve disputes as an alternative to litigation. By 2008, the figure had increased to 314 referrals (Lynch, 2010). Despite the fact that much has been written about lawyers‘ role in and experiences of ADR in commercial disputes in Scotland, and construction matters in other jurisdictions such as England and Wales and the USA (see for example, Povey (2005)), little is known about lawyers‘ interaction with the process with regard to disputes in Scotland. While recent research has focused on Scots

2

construction lawyers‘ experience of and attitudes to mediation in construction disputes (Agapiou & Clark (2010), the research presented in this paper covers a wider and more in-depth investigation of lawyers‘ opinions encompassing early neutral evaluation, conciliation and min-trials. This paper seeks to establish the level of awareness of, interest in and concerns regarding Alternative Dispute Resolution among Scottish legal practitioners, and to assess the implications for the resolution of disputes within the construction industry.

2 The growth of ADR in Scotland

Seemingly, the Commercial Court in Scotland does not have the power to direct the use of ADR without the consent of the parties. The enthusiasm of the English courts for the use of ADR to resolve disputes was driven by the Woolf Review, and the subsequent introduction of the Civil Procedure Rules (Gould, 2009). The ability in the English Rules to encourage the use of ADR has been backed up by comment and orders from judges in a series of cases since 2000 culminating in the decision of the Court of Appeal in Halsey v Milton Keynes NHS Trust decided in May 2004. Further examples where the English courts would not tolerate the unreasonable refusal to take part in mediation where the parties have contracted to mediate or where the courts consider it might achieve a settlement outcome include Burchell v Balland in April 2005, Wethered Estate Limited v

Michael Davis and Others, and Earl of Malmesbury v Strutt & Parker decided in March 2008. Nonetheless, it is difficult to trace similar judicial enthusiasm in Scotland, according to Clark (2008). There does not seem to be an equivalent rule in Scotland that encourages the use of ADR in either the Court of Session rules or the Sheriff Court rules. The only exceptions to that are contained in the rules for conduct of Commercial Actions in the Court of Session introduced in, December 2004, and the rules for Commercial Actions in the Sheriff Court which were introduced in March 2001 Although these rules have been introduced there is little evidence of the use of ADR being encouraged to resolve commercial disputes either by Court of Session judges or by Sheriffs. Nevertheless, pilot schemes involving in-court mediations were established by the Scottish Government in Sheriff Courts across Scotland. These were designed to test different models of provision to help inform discussions about future sustainability of mediation services. However, according to Clark (2008) these were confined to low value claims involving individuals rather than commercial disputes. Many commentators (e.g. Clark, 2009) have suggested that there is little demand for ADR in Scotland, citing judicial attitudes; change resistant legal profession; absence of an ADR body and lack of client awareness, as barriers to the further development of ADR within the Scottish arena.

2.1 Legal Profession

In most cases, when clients bring their disputes seeking advice, lawyers automatically enter into litigation: the adversarial process they are familiar and comfortable with, without any thought to possible alternatives. Not only is ADR an ‗unknown quantity‘ to many in the legal fraternity, they also appear unwilling to view it as an opportunity to expand their dispute resolution business rather than a threat to their fee income. This is true notwithstanding the fact that 94% of court actions generally settle (30% of these within one week of proof) (Brooker and Lavers, 1998). Surely the Scottish legal profession should be more enthusiastic in their promotion of alternatives to avoid such ‗door of the court settlements‘, if for no other reason than to attain reduced client costs? There was some interesting research on this matter conducted by Agapiou & Clark (2010). The authors surveyed Scottish construction lawyers and, amongst a series of interesting results, found that almost three-fifths of respondents (58%) had working experience of representing clients in mediations; with 57% citing reduced client costs as by far the most important determining factor in recommending mediation to a client.

3

2.2 ADR Body

Prior to the establishment of Core Mediation in Edinburgh there was no accreditation body with the necessary infrastructure to supply appropriate mediators and manage disputes from initial enquiry through to a concluded mediation. Whether the existence of such a body will allay any fear judges may have regarding responsibility for the conduct of mediation cases before the courts remains to be seen. In a response to the Scottish Civil Courts Review Consultation Paper, Core Mediation highlighted that they had conducted over 200 mediations since 2002 (Sturrock, 2007). Although this may seem a small number on face value, it is interesting to note that of the total mediation many have taken place within the last few years.

2.3 Client Awareness

With ADR being little used in Scotland and lawyers reluctant to promote it, commercial clients are on the whole unaware of its possible benefits which have led to a resultant lack of demand. However, many large commercial disputes in Scotland involve international companies. Perhaps the greater use of ADR in other jurisdictions may well lead to a better appreciation of its benefits within the Scottish construction context, resulting in similar growth in Scotland as has been seen in England. Ultimately, such demand may force Scottish legal practitioners to expand their dispute resolution portfolio, or risk losing their clients‘ base (Clark, 2008).

2.4 Prospect for change in Scotland?

Scotland has not been as radical in its reforms of the civil justice system. In spite of calls and measures to encourage ADR, including the introduction in 2001 and 2004, respectively, of rules governing Commercial Actions in the Court of Session and to rules for Commercial Actions in the Sheriff Court, there is little evidence to suggest that ADR has been widely embraced north of the border (Clark, 2009). Indeed, is there any prospect that ADR will ever gain credibility and acceptability amongst the judiciary, legal professionals, clients and government in Scotland? Interestingly, there has been plethora of government reviews and consultations focusing on reform of the civil justice system in Scotland since 2001, cumulating in the publication of the Gill Review of Civil Justice in 2009. All the reports are, to a certain extent, critical of the status quo and have been instrumental in moving the ADR agenda forward by advocating a move away from litigation towards more consensual approaches to dispute resolution, particularly from a value for money and access to justice perspectives (see for example, Scottish Consumer Council (Civil Justice Advisory Group), 2002) In 2007 the then Scottish Executive [now Scottish Government] published a report entitled ‗Modern Laws for a Modern Scotland – A Report on Civil Justice in Scotland‘. The report itself was a response to the Scottish Consumer Council‘s call for a review of the Civil Justice System in Scotland. It compares and contrasts the range of dispute resolution options available to disputing parties, but rather than describing them as either consensual or binding methods, the authors of the report suggested that options should be viewed as being on a continuum ranging from least [court] intervention at one end to most at the other. The Scottish Executive report seems to endorse the Sheriff Court Rules Council and the Court of Session Rules Council governing the use of ADR in the court process, while suggesting that ADR, and especially mediation, should be an integral part of civil justice system in Scotland following Lord Gill‘s Review (Gill, 2009). Nevertheless, it seems unlikely that the proposals in the Gill Review will lead to a rapid adoption of ADR in Scotland, as compared to the proposals within Woolf Review within England and Wales. Notwithstanding the recommendations of the Gill review, the power to make an order for ADR to take place already exists in the Sheriff Court rules, so can we presume that this power will begin to be used in appropriate cases?

4

3 Data Collection & Analysis

The aim of the research was to establish the level of awareness of, interest in and concerns regarding ADR relative to legal practitioners in Scotland. Having defined the framework for the survey, the next step was to develop the necessary data collection tool in accordance with the research objectives. The questionnaire was distributed via the internet to 600 legal professionals randomly selected from the membership lists of professional associations for Solicitors & Advocates (Advocates are Barristers in Scotland) based and operating in Scotland.

3.1 Data collection process

Since the questionnaire was self-administered, there was a need for it to be self-explanatory. In order to achieve this, a covering letter and an introductory page describing the aims and objectives of the research was attached to the questionnaire. The questionnaire was structured into 3 sections: Firstly, a number of variables from the survey were selected from the questionnaires as the basis for assessing the use of ADR including the background and experience among Solicitors and Advocates, their training in ADR and organisational policies and practices towards ADR. Secondly, in terms of experiences of ADR, respondents were asked to rate the extent of their and their firms‘ involvement within civil disputes cases over the last 12 months as well as the extent to which ADR procedures were actively used to resolve these disputes. Thirdly, as part of the study the respondents were asked to rate their perceptions of dispute resolution and ADR. The purpose of the questions was to ascertain an understanding of the barriers to the use of ADR more generally and for construction disputes in particular. The attitudes were measured by asking the sample frame to rate their responses to 11 statements on a Likert scale (strongly agree =1; moderately agree = 2; neither agree nor disagree = 3; moderately disagree = 4; strongly disagree =5).

3.2 Survey Results

A total of 600 questionnaires were distributed among legal practitioners in Scotland. Of the total, 191 were returned by post wholly or substantially completed, which represents a response rate of 32%. According to Andrews et al (2002), this a relatively high response rate for web-based surveys. McAdoo et al (2003) concur that a 32% response rate is relatively high for and social science-based surveys of legal practitioners.

3.3 Background of the respondents and their organisations

A number of variables from the survey were selected from the questionnaires as the basis for assessing the knowledge and use of ADR including the background and experience of the respondents in the legal profession, their training in ADR and organisational policies and practices towards ADR. Of the total numbers of practitioners who responded, 57 % described themselves as Partners, 20 % as Associates, 15% as Advocates and the remainder as QCs and Assistants. In terms of numbers of years within the legal profession, almost 80% of respondents had practised law for more than 10 years, with 20% having more than 30 years‘ experience in practice.

3.4 ADR training

A number of questions focused on formative training in ADR methods among legal practitioners at pre and post qualification stages. In terms of whether respondents had training in consensual forms of dispute resolution prior to entering legal practice, the figures were consistent among legal practitioners. It seems that 95% of those who responded had not received training in ADR techniques. Perhaps this is a reflection of the relatively novelty of ADR as a dispute resolution mechanism within Scotland per se and the lack of taught provision within the respective Law Schools more specifically? However, this finding is consistent with to Clark & Dawson‘s 2007 survey in which only 4% of respondents had any exposure to mediation at Law School (Clark & Dawson, 2007). It seems that training in ADR techniques increased after respondents had entered

5

legal practice. Around 22% of respondents had received some formal training in ADR techniques. It is widely recognised that post-qualification training had undergone significant reform in recent years. The reforms developed and introduced through organisations such as Core Mediation & the Scottish Mediation Network have been instrumental in promoting more consensual forms of dispute resolution in Scotland such as mediation among newer members of the profession, especially (Sturrock, 2007).

3.4.1 Client representation in Civil Disputes

The questions asked respondents to indicate their and their firms‘ involvement in civil dispute work over the previous 12 month period. It seems that civil dispute work comprised in excess of 50% of the total workload of 42 % of the practitioners who responded to the survey (see Table 1). However, it seems that only 17 % of their firms had a workload in which civil dispute work comprised more than 50% of overall activity. Thus, it would appear that 83% of practitioners who responded worked in firms whose civil dispute work comprised less than 50% of their firm‘s workload (See Table 1).

Table 1. Client Representation in Civil Disputes Percentage of time

representing client in civil disputes

Individual practitioner‘ Response %

Respondents‘ Firm Involvement

%

None 15 11

Less than 25% 29 42

Between 25% and 50% 13 30

Between 50% and 75% 12 8

Between 75% and 100% 31 9

3.5 Methods of dispute resolution employed

The question sought to ascertain the methods of dispute resolution employed by legal practitioners in Scotland. It was in three parts on each of the surveys. Firstly, it dealt with legal practitioners generally in Scotland in part (a), then focused on the respondent‘s firm in part (b) and then the firm in the last year in part (c).

3.5.1 Litigation, Negotiation & Arbitration

It seems that litigation and negotiation were almost universally recognised as means of dispute disposal employed regularly by practitioners in Scotland. It would appear from the survey that Arbitration received wide support as a means of resolving disputes although it was noteworthy that of 109 lawyers who identified it as a method of dispute resolution only 36 had actually used it within the last 12 months. These figures seem to reflect a decline in the overall use of Arbitration more generally (Kennedy et al, 2010), and are consistent with several studies on the Arbitration in Scotland, specifically (Dundas and Bartos, 2010).

3.5.2 Adjudication, Mediation and Conciliation

Around two-thirds of the total respondents recognised Adjudication as a means of dispute resolution employed by legal practitioners in Scotland. Nevertheless, it seems that only 8% of those who responded to the survey were actively involved with the process. These figures may reflect the increasing involvement of other professionals in adjudication procedures, and are consistent with the findings of the recent studies of the Adjudication process (Kennedy et al, 2010). The respondents also seem to have recognised Mediation as a means of dispute resolution involving legal practitioners with responses almost mirroring the support for Arbitration. Around 57% of the

6

total number of those who responded to the survey recognised Mediation as an ADR process employed by Scots legal practitioners. As will be seen later in the survey, these figures perhaps reflect the fact that mediation is viewed as a prominent method of dispute resolution in Family, Matrimonial and Employment matters (Lynch, 2010). These are both specialist areas and they would therefore have many fewer practitioners active in them. Around two-thirds of lawyers who responded recognised conciliation as a method of dispute resolution in Scotland (see Table 2). However, the level of active involvement is much less in this case with 21% of respondents actively involved in the procedure. While conciliation is a term used particularly in the area covered by Tribunals, it is often used as an alternative expression for mediation and indeed the terms are often interchangeably within legal texts (Clark, 2009).

Table 2. Use of ADR Legal practitioners in

Scotland (N)

Your Practice (N)

Your Practice within the last 12 months (N)

Litigation 112 102 100

Negotiation 113 104 101

Arbitration 109 45 36

Adjudication 79 22 21

Mediation 108 48 38

Conciliation 18 10 6

Neutral Evaluation 15 10 6

Mini Trial 5 3 3

Nevertheless, while conciliation may not have any legal standing, it differs from mediation in that parties are not required to meet as part of the process.

3.5.3 Neutral Evaluation & Min-trials

It seems that Neutral Evaluation was recognised by only 8% of respondents as a method of dispute disposal used in Scotland. Even fewer respondents recognised mini-trials as a means of dispute resolution in Scotland, and had been involved with it to a large extent over the last 12 months. It seems that while the procedures are being used to suit particular situations and needs in dispute disposal, their identification and use is only marginal. Unless a particular method was specified in contracts for dispute disposal as happens with arbitration and adjudication, or was the known industry method e.g. conciliation in employment disputes, then there appears to be little use of ADR to settle disputes. Most disputes appear to be resolved by either by negotiation or litigation, generally.

3.6 Recent experience of using ADR processes

In terms of respondents‘ most recent dispute experience, it seems that litigation was, overwhelmingly, the most common method for resolving disputes in Scotland according to the figures in Table 3).

7

Table 3. Recent experience of ADR processes**

0 1-5 5-10 10-20 20+ 50+

Litigation 16 11 4 14 68 68

Arbitration 45 49 4 4 2 1

Adjudication 60 21 4 2 4 1

Mediation 56 35 9 7 2 2

Conciliation 60 15 6 6 3 2

Neutral Evaluation

60 4 0 0 2 0

Mini-trial 65 4 0 1 0 0

other (please specify)

40 0 1 1 2 3

**The total minimum number of procedures in each category group is added up then on the basis that respondents

represented clients on each side of the same dispute The question sought to ascertain the level of use of litigation and alternative means of dispute resolution among the sample of respondents. The respondents were asked to indicate the total number of cases dealt with by type of means of disputes resolution ranging from 0-50+ for all practitioners. It would appear even on the most arbitrary level of assessment taking the response at the bottom of the range, that litigation was used on 4931 instances (see Table 3), whereas other means of dispute resolution were used on 1208 occasions: ligation accounting for over 80 % of the total number of total number of cases resolved. In fact this figure itself could be a gross underestimate of the actual number of litigations being handled by respondents as, for instance, one lawyer stated that that he had handled over 400 cases involving litigation. This certainly may be an exception but may also be indicative of much higher levels of involvement with litigation as compared to the volume of cases calculated through an arbitrary assessment of cases.

3.7 Appropriate use of ADR

This question proved the most challenging for most respondents. Many of the respondents made numerous entries identifying that many of the ADR procedures were appropriate means of resolution given the nature of the dispute. A few respondents made only one or two entries with still others making no entries that may suggest that none of the procedures were appropriate. There seems to be a clear consensus among the respondents that mediation was appropriate for family and matrimonial disputes. Of the lawyers who responded to the survey 94 considered mediation appropriate for family and matrimonial disputes (see Table 4).

8

Table 4. Appropriate use of ADR Arbitration Adjudication Mediation Neural

Evaluation Mini-Trial Other

Construction 70

75 51 28 12 8

Family or matrimonial

12 9 140 25 8 13

Medical negligence

22 21 42 32 11 16

Employment

45 26 35 25 12 11

Other Civil

45 29 57 22 12 13

This figure equates to 49% of the total respondents. There also seemed to be a consensus among respondents, albeit to a lesser extent, that mediation was appropriate in resolving employment-related disputes. It would seem that respondents considered binding procedures to be the most appropriate for resolving construction disputes. Indeed, around 58% of those who responded to the survey acknowledged Arbitration and Adjudication as standard methods of resolving such disputes. It was possible that some of the respondents reserved their position regarding the use of adjudication for the resolution construction disputes. The question sought means of resolution, implying permanence, and while pragmatically adjudication often was, in fact, resolution of the dispute, technically it is only temporarily binding (Dundas & Barton, 2010), and many of the respondents would be familiar with that particular paradox. There did not seem to be significant support for any particular ADR procedure for disputes involving medical negligence matters although mediation and ENE were identified as most appropriate among legal practitioners. Indeed, 5 % of those who responded identified mediation as the most appropriate means of ADR, while ENE was identified by 8% of respondents as most suitable in medical negligence cases. It would appear that Mini-trial was the procedure that seemed least understood by respondents. Many of those who responded to the survey considered all other means of ADR appropriate to many of the disputes ahead of the mini-trial process.

3.8 Legal practitioners‟ attitudes to ADR

3.8.1 ADR and business relationships

It seems that the majority of those who responded to the survey considered that dispute resolution avoiding judicial or quasi-judicial methods would better preserve business relationships, with 52 % of respondents in strong or moderate agreement with the proposition (see Table 5).

9

Table 5. Legal practitioners ‗attitudes to ADR Strongly

agree (%) Moderately agree (%)

Neither agree nor disagree

(%)

Moderately Disagree

(%)

Strongly disagree

(%)

Dispute resolution avoiding judicial or quasi-judicial methods

better preserves business relationships.

13 39 22 16 10

Dispute resolution avoiding judicial or quasi-judicial methods are less expensive and less time

consuming for clients

17 40 29 9 5

Dispute resolution avoiding judicial or quasi-judicial methods would reduce the workload in the

legal community

9 24 47 15 5

Dispute resolution avoiding judicial or quasi-judicial methods would add to the workload in the

legal community

2 10 55 24 9

Compromise and settlement are the most effective means of dispute

resolution

31 48 14 5 2

Legal practitioners should routinely encourage clients to choose the dispute resolution process most

appropriate to their business

39 37 12 3 9

Training in the whole range of dispute resolution processes should

now be a core part of a legal practitioner‘s university education

37 33 19 6 3

A dispute resolution approach avoiding the formal legal process should always be tried in order to

avoid if possible formal proceedings

13 38 21 15 13

A structured set of legal guidelines defining these terms and their parameters would be a useful reference for application to

contracts

26 49 18 6 1

The use of other means of dispute resolution as an initial approach

preceding the formal legal process should be included in the Rules of Court. Time bar and prescription

issues would thus have been accommodated

13 30 29 13 15

On the basis you saw it as a threat, if your views on the financial

consequences were suspended, would the use of ADR be a social

benefit

9 43 40 4 4

10

This acknowledgement however does not necessarily suggest support for consensual means of dispute disposal in itself. A number of the respondents made the point that settlement prior to formal legal proceedings was the most common outcome for litigation and their response to the question was recognition that litigation would have a detrimental effect on business relationships between parties involved in a dispute.

3.8.2 ADR and Clients

In terms of whether dispute resolution avoiding judicial or quasi-judicial methods are less expensive and less time consuming for clients, the majority of those who responded to the survey, 55%, supported the proposition with 17% in strong agreement (see Table 5). This finding may suggest that in some circumstances respondents would recommend mediation to clients as an alternative to more traditional methods of dispute resolution. Perhaps, where the speed and cost of settlement are important determining factors? It would be interesting to ascertain whether ADR does indeed have an overall effect by reducing the number of cases that would ultimately go through the formal tribunal process or whether by conducting a mediation or other ADR procedure during the tribunal would shorten the process; or reduce the scale of the dispute; or mitigate costs in some other way over what would have been achieved, in any event, by negotiation?

3.8.3 Legal practitioners and Workload

The respondents were asked whether dispute resolution avoiding judicial or quasi-judicial methods would reduce legal practitioners‘ workload. Around 55% of those who responded to the survey held a neutral stance of the impact of ADR on their workload, with the balance 45% strongly agreeing that their workload would be reduced (see Table 5). The informal nature of ADR procedures and the reduced barriers to entry may allow more players, outwith the legal fraternity, to participate in provision of the service, so it could be argued that there would be a reduction in workload for the legal profession. The view being expressed was perhaps an acknowledgement of the Scottish Government‘s objective of reducing time to settlement and process costs that may be more readily achieved by the removal or reduction of input by legal practitioners (Lynch, 2010). There is of course a counter argument that if the average cost a dispute declined access to justice would be easier thereby allowing more disputes to be processed and workload maintained at current levels. In terms of whether dispute resolution that would avoid judicial or quasi-judicial methods would add to the workload of legal practitioners, there was no clear consensus from respondents either way. It seems only small proportions of respondents held the view that it would add work, with 9% of respondents in agreement with that proposition. A significant number of respondents, 47% of respondents, took a more neutral stance when posed with question as compared to previous questions. Perhaps, this finding reflects the profile of respondents relative to their level of seniority within the profession.

3.8.4 Effective means of dispute disposal

The respondents were then asked whether compromise and settlement are the most effective means of dispute resolution. It would appear that 80% of practitioners in agreement with the proposition, with only 7% holding a contrary view (see Table 5). This may reflect the experience of legal practitioners in Scotland, that most cases involving litigation settle before formal process begins. The respondents also agreed with the proposition, 51%, that practitioners should routinely encourage client to select dispute resolution process most appropriate to their business.

3.8.5 ADR knowledge and training

The majority of respondents considered that training in the whole range of dispute resolution processes should now be an integral part of a legal practitioner‘s university education. This would seem to concur with Mackie‘s suggestions for increased education in consensual methods of dispute disposal (Mackie (1991)). It seems that 70% of those who responded to the survey agreed with the

11

proposition. These responses may reflect a greater interest and desire to be better acquainted with ADR procedures than previously thought. On a related issue, findings from the survey underlined the need for the Government and others involved in the promotion of ADR to better explain procedures and to a wider audience, at least within the legal fraternity: this is consistent with the recommendations of the Gill Review (Gill, 2009). Indeed, respondents agreed, 76% of respondents, that a structured set of legal guidelines incorporating terminology and parameters would be a useful reference document for the application to contracts.

3.8.6 Effective use of ADR

A question was posed on whether dispute resolution approach avoiding the formal legal process should always be tried in order to avoid if possible formal proceedings. The results of survey were far from conclusive with only around 50% of respondents in agreement with the proposition (see Table 5). This may reflect self-interest and to a certain extent self-preservation of those who responded to the survey. Patterson and Seabolt (2001) suggest that ‗ADR adds an extra layer of doubt and intrigue to situations where there may already be considerable disagreement‘ (pg 391), in which case ADR may in fact exacerbate matters further worsening an already fraught state of affairs. Nevertheless, most construction industry commentators disagree with this view asserting that ADR is indeed an adjunct to other forms of dispute disposal (CIC, 2002).

3.8.7 ADR and the Courts

It seems that 29% of respondents to the survey strongly disagreed with the proposition that ADR should be included in the Rules of Court (see Table 5). The proposition could be read as going beyond the Woolf Reforms to the civil procedure rules in England and Wales and this may have contributed to the negative view from some of the respondents.

3.8.8 The opportunities and threats from ADR

In response to a question as to whether ADR constitute an opportunity or a threat to legal practitioners within Scotland, the majority of respondents, 52%, agreed that ADR was an opportunity rather than a threat; only 7% of respondents identified ADR as a threat to the legal profession (see Table 5). Interestingly when asked the question ‗on the basis you saw it as a threat, if your views on the financial consequences were suspended, would the use of ADR be a social benefit?‘ 52% of respondents agreed with the proposition. Perhaps a more tellingly finding was that only 7% of respondents disagreed that the use of ADR would be a social benefit (see Table 5). It could be that the perception of the legal fraternity as inherently conservative towards non-court sanctioned dispute resolution is unfounded, or that perhaps this was the most socially-acceptable response?

4 Conclusion

While a significance body of case law does exist, proceedings involving ADR are not widely disseminated seemingly amongst legal practitioners according to the survey sample. The study has also shown that Scots legal practitioners overwhelmingly agree that binding forms of dispute resolution such as adjudication and arbitration remain the most effective means of resolving construction disputes, albeit opportunities for mediation are emerging. The survey findings will hopefully provide added impetus to the debate surrounding ADR more generally, and the development of a strategy for the greater use of consensual means of dispute disposal for resolving disputes with particular reference to the construction industry in Scotland. Such a strategy will require further education & training in ADR processes among legal practitioners in addition to the wider dissemination of case law relative to the use of ADR in construction disputes.

12

5 Acknowledgements

A more developed version of this paper will be published in a forthcoming edition of the ICE Proceedings Journal of Management Procurement and Law, and we are grateful to the publishers of the paper for permission to reproduce extracts from this publication.

6 References

Agapiou, A and Clark, B (2010) An investigation of construction lawyer attitudes to the use of mediation in Scotland, RICS COBRA 2010 conference, Dauphine-Paris University, 2nd-3rd September, ISBN 9781842196199

Brooker, P and Lavers, A (1998) Perceptions of alternative dispute resolution as constraints upon its use in the UK Construction industry, Construction Management and Economics 15, 519-529

Brooker, P and Lavers, A (1997) Perceptions of ADR as constraints upon its use in the UK construction industry' Construction Management and Economics Vol. 15, No. 6, 519

Clark, B (2008) Institutionalizing Mediation in Scotland, 3, Juridical Review 193 Clark, B (2009) Mediation and Scots Lawyers: Past, Present and Future, May, Edinburgh Law

Review Clark, B and Dawson, C (2007) Scottish Commercial Litigators and ADR: A Study of Attitudes and

Experience, 26, Civil Justice Quarterly 228-249 Dundas and Bartos (2010) Arbitration (Scotland) Act 2010, SULI Gill, Lord et al (2009) Scottish Civil Courts Review [available at http://www.scotcourts.gov.uk/civilcourtsreview/ Gould, N. and Ors (2009) The Use of Mediation in Construction Disputes: Summary Report of the

Final Results, King‘s College London and HMCS, 7 May 2009 Harvey, M (2001) Undermining construction, London: Institute of Employment Rights Lavers, A. and Brooker, P. (2001) Commercial and Construction ADR: Lawyers‘ Attitudes and

Experience, 20 Civil Justice Quarterly 327-347 Mackie, K.J. (1991) A Handbook of Dispute Resolution, London: Routledge Patterson, S.R. & G. Seabolt (2001) Essentials of Alternative Dispute Resolution. London: Prentice

Hall Povey, A (2005) An investigation into the mediation of disputes in the South African Construction

Industry, Journal of the South African Institution of Civil Engineering, Vol. 47, No.1, pp 2-7, paper 562

Scottish Consumer Council (Civil Justice Advisory Group) (2002) The Civil Justice System in Scotland – A Case for Review (2005: Edinburgh) Sheriff Court Phase 2, Scottish Executive Central Research Unit

Sturrock, J (2007) Reflections on Commercial Mediation in Scotland, 73, Arbitration 77–83

6.1 Case Law

Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576 Burchell v Bullard & Ors [2005] EWCA Civ 358 (08 April 2005) The Wethered Estate Ltd v Michael Davis and others [2005] EWHC 1903 Earl of Malmesbury v Strutt & Parker [2008] EWHC 424 (QB)

13