Facilitative and Evaluative Mediation for the Application of Construction Cases
Publication: Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 14, Issue 2
Abstract
There are a myriad of approaches applying different techniques in the mediation of construction disputes. Different mediators may have developed their own styles of practice. Among others, evaluative and facilitative mediation or a combination are the approaches mediators commonly apply in the mediation of construction cases in Hong Kong. It is common to see advocates of facilitative mediation or evaluative mediation in the Hong Kong construction industry. But given the distinct nature of the two approaches, there are relatively few advocates who will use a mix-and-match approach. However, during interviews with experienced mediators in the construction field, some mediators are in actual practice trying to merge two of the approaches. One example is that some of the mediators are willing to explain or give views on the disputing matters from a technical angle, although facilitative mediation is adopted as the main approach. However, this requires the mediator’s extensive knowledge of the disputing issues. A confluence of the two approaches in a single mediation case is an emerging topic among mediators in construction cases. How a cocktail of the two approaches in mediation could enhance the effectiveness and cost of mediation remains to be explored. During interviews with experienced mediators and disputing parties’ representatives, under what circumstances and how mediators in the Hong Kong construction industry perceive the role of the two approaches of mediation in mediating construction cases and how they apply evaluative mediation technique as a necessary supplement to facilitative mediation, or vice versa, are the topics explained in this paper. Recommendations are made to readers after the analysis.
Get full access to this article
View all available purchase options and get full access to this article.
Data Availability Statement
All data, models, and code generated or used during the study appear in the published article.
References
Works Cited
Alfini, J. J. 1997. “Evaluative versus facilitative mediation: A discussion.” Florida State Univ. Law Rev. 24 (4): 919.
Carrel, A. 2021. “Dismantling the ‘facilitative’ and ‘evaluative’ dichotomy, reflecting on the Riskin’s grid and predicting the future.” In Discussions in dispute resolution: The foundational articles. New York: Oxford University Press.
Della Noce, D. J. 2009. “Evaluative mediation: In search of practice competencies.” Conflict Resolut. Q. 27 (2): 193–214. https://doi.org/10.1002/crq.255.
Golann, D. 2008. “Variations in mediation: How-and why-legal mediators change styles in the course of a case.” J. Dispute Res. 2000: 41.
Golann, D., and M. C. Aaron. 2010. Using evaluations in mediation. Boston: Suffolk University Law School.
HK DoJ (Hong Kong Dept. of Justice). 2010. “The report of the working group on mediation.” Accessed March 3, 2021. https://www.doj.gov.hk/en/legal_dispute/pdf/med20100208e.pdf.
HK DoJ (Hong Kong Dept. of Justice). 2018. “Mediation conference 2018.” Accessed March 5, 2021. https://www.doj.gov.hk/en/publications/pdf/Mediation_Conference_2018_Publication_e.pdf.
Hughes, S. H. 1998. “Facilitative mediation or evaluative mediation: May your choice be a wise one.” Accessed January 7, 1998. https://digitalrepository.unm.edu/cgi/viewcontent.cgi?article=1464&context=law_facultyscholarship.
Imperati, S. J. 1997. “Mediator practice models: The intersection of ethics and stylistic practices in mediation.” Willamette Law Rev. 33: 703.
Lande, J. 2000. “Toward more sophisticated mediation theory.” J. Disp. Resolut. 2000 (1): 7.
Leung, R. H. M. 2014. Hong Kong mediation handbook. 2nd ed. Hong Kong: Sweet & Maxwell.
Levin, M. S. 2001. “The propriety of evaluative mediation: Concerns about the nature and quality of an evaluative opinion.” Ohio State J. Disp. Resolut. 16 (2): 267–296.
Lowry, R. 2004. “Evaluative mediation.” In Divorce and family mediation: Models, techniques, and applications, edited by J. Folberg, A. L. Milne, and P. Salem. New York: Guilford Press.
Lung, K. W. 2016. “Reform in the mechanism for the resolution of various disputes by the judiciary.” Accessed February 20, 2021. https://mediation.judiciary.hk/en/speeches.html.
Riskin, L. L. 1996. “Understanding mediator orientations, strategies and techniques: A grid for the perplexed.” Harvard Negotiation Law Rev. 1 (38): 1–51.
Riskin, L. L. 2003. “Decision-making in mediation: The new old grid and the new new grid system.” Notre Dame L. Rev. 79 (1): 1.
Stempel, J. W. 2000. “The inevitability of the eclectic: Liberating ADR from ideology.” Scholarly Work 217.
Stulberg, J. B. 1996. “Facilitative versus evaluative mediator orientations: Piercing the grid lock.” Florida State Univ. Law Rev. 24 (4): 919.
Wade, J. 2012. Evaluative and directive mediation: All mediators give advice. Robina, Australia: Bond Univ. Law Faculty Publications.
Information & Authors
Information
Published In
Copyright
© 2022 American Society of Civil Engineers.
History
Received: Jun 9, 2021
Accepted: Nov 20, 2021
Published online: Feb 7, 2022
Published in print: May 1, 2022
Discussion open until: Jul 7, 2022
Authors
Metrics & Citations
Metrics
Citations
Download citation
If you have the appropriate software installed, you can download article citation data to the citation manager of your choice. Simply select your manager software from the list below and click Download.