Mediation : a change in litigation culture or a cultural norm?

Abstract

"Cross cultural differences create such a high degrees of friction and frustration that they put business deals in jeopardy” 1
However ‘ ... the realisation, that the future will belong to ADR ” is a ‘… view … more in tune with the growing feeling in the international business community: “Don’t litigate, don’t arbitrate, but settle”.2 This paper seeks to determine, whether participant’s engaged in construction disputes, are compelled to choose mediation as their preferred dispute resolution procedure as a consequence of change in litigation culture or are they more likely to use mediation as their foremost preference, due to influences from their cultural background? A mixture of qualitative methodologies has been used in the sourcing of reputable research materials, with some supporting use of existing and relevant, quantitative empirical research data. Short excerpts inform of the evolution in Alternative Dispute Resolution (ADR) procedures with in UK construction, in the European Union and internationally, worldwide and of the legislative / judicial changes and ADR developments, which have influenced their use by people from different cultures, whilst affording a specific focus on mediation. The term ‘Cultural Norm’ is interpreted by employing Cultural Dimension Interests from American Negotiation Theory, which can be linked to ADR, by supporting substantive empirical data, which provides the basis for statements subsequently given, which are correlated to other reputable academic works, in which opinion regarding preferred choice of ADR has been addressed. The ‘Cultural Norm’ for the most preferred choice of ADR procedure, by persons of different cultures, is thus derived. This paper’s conclusion confirms that on the whole, participants in construction dispute are not forced to choose mediation, nor is it the ‘Cultural Norm’ to choose mediation, as the foremost preferred ADR procedure, despite there having been a noticeable change in litigation culture on the worldwide stage, resulting in the greater use of mediation procedures and the introduction of some innovative ADR concepts. The existence or lack of a settlement culture has proven to be key in the success or failure of ADR. This paper’s recommendation is that further empirical research should seek to procure substantive data on the frequency of, background behind, preference in choice and success of outcome of ADR meetings, which if used, will aid ADR administrators worldwide to better focus their time, effort and resources on those ADR procedures best suited to a particular background. Recording outcomes might also provide for key performance indicators in ADR procedure.