An analysis of the key challenges to the widespread use of mediation in the Turkish construction industry
Purpose – The Turkish Ministry of Justice submitted the Draft Law on mediation in legal disputes, which was predicated on the European Council (EC) Directive on certain aspects of mediation in civil and commercial matters, to the Turkish Parliament in June 2008. Contentious arguments have followed on the provisions of the Draft Law as well as on the overall applicability of mediation in Turkey. The purpose of this paper is to examine the context surrounding the new mediation phenomenon in order to identify the key challenges awaiting its widespread use in the Turkish construction industry.Design/methodology/approach – Two complementary approaches were adopted in this paper. First, an analysis of the most debated papers of the Draft Law is carried out to determine the potential problems associated with the legislation by making comparisons with the EC mediation directive and mediation laws in some of the member states. Second, a series of structured interviews are organized among the Turkish construction i...
An investigation of evaluative and facilitative approaches to construction mediation
Purpose – The paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK.Design/methodology/approach – This paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced.Findings – The findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer‐driven” and adversarial, with mediators utilising evaluative techniques whic...
Settlement as Civil Justice
Right across the common law world, what appear to be large-scale changes in state management of civil disputes have become visible over at least two decades. At the heart of these changes lies a growing recognition of 'settlement' as an approved, privileged objective of civil justice. The courts present themselves not just as agencies offering judgment but as sponsors of negotiated agreement. In this jurisdiction these changes first appeared as spontaneous initiatives within the judiciary. They are now drawn together and given official blessing through the Civil Procedure Rules which came into force in April 1999. They take on a recognizably different shape in the earlier, but now embattled, Family Law Act 1996. How should we understand these changes? Do they imply altered relations between lawyers and their clients, or do they represent a relatively discrete reordering of professional practice? Does this move by government into the formerly 'private' world of negotiated agreement reflect a fundamental change in the mode of government of the kind being forecast at the beginning of the 1980s?1 Historically, government has devoted virtually its entire investment in dispute management to the provision of 'courts'. While any generalization about what English courts have done needs to be advanced cautiously, these agencies have on the whole conceived their role quite narrowly, as one of providing trial and judgment. Pre-trial interventions have been largely devoted to making sure the landscape does not change too much before trial, otherwise leaving the parties to proceed towards trial at their own pace. While on the surface a clear line appeared to be drawn by these arrangements between negotiated agreement and authoritative third-party determination, it is a commonplace that beneath the surface lawyers have conceptualized virtually their entire role in dispute settlement as 'litigation'. Consequently, they have come to use the framework provided by civil procedure as the primary arena for their attempts to 'settle'.2 So these two apparently different modes of decision-making have come to share a single procedural route, one historically devised for the safe achievement of judgment.3 Public recognition that the sponsorship of settlement was an explicit, official objective of the courts came relatively late in the day. Statements of this aspiration appear in the Heilbron/ Hodge Report of 19834 and then in the Interim version of the 'Woolf' Report. In the latter, judicial 'case management' is prescribed and its overall purpose identified as 'to encourage settlement of disputes at the earliest appropriate stage; and, where trial is unavoidable, to ensure that cases proceed as quickly as possible