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Brooker, P (1997) Factors which impact on the choice of alternative dispute resolution in the construction industry, Unpublished PhD Thesis, School of Social Sciences and Law, Oxford Brookes University.

  • Type: Thesis
  • Keywords: alternative dispute resolution; arbitration; dispute; dispute resolution; England; interview; litigation; survey
  • URL: https://doi.org/10.24384/htte-fz51
  • Abstract:
    The stated aim of this thesis is an empirical investigation into the factors which impact on the development and choice of Alternative Dispute Resolution (ADR) as a dispute resolution procedure between contractor and sub/specialist contractor in the construction industry of England and Wales. The methodology selected to achieve this aim was the collection of both quantitative and qualitative data through a postal survey and in-depth follow-up interviews. A further study of legal advisors to the construction industry was undertaken to investigate their attitudes towards ADR and to assess the influence of legal advisors in the choice and use of ADR by contractors. The research provides evidence that contractors are considerably dissatisfied with the costs, speed and adversarial approach of both arbitration and litigation and that many of the advantages of ADR, which are promoted its proponents, are held as perceptions by contractors. These attitudes are resulting in contractors being significantly interested in using ADR. However, the research confirms that ADR is not used extensively and provides data to show its use is hindered by negative perceptions, first, that it can be used to create delay in the settlement of disputes and, second, its non-binding nature is a weakness. The research indicates that contractors are likely to confine the use of ADR to small financial disputes and that arbitration and litigation are likely to continue to be preferred for large disputes. The development of ADR is likely to be further restricted by contractors' perceptions about the limitations of ADR for construction disputes. Contractors do not perceive ADR to be appropriate for disputes where the parties have become adversarial and entrenched in their position nor where the dispute is perceived to be legally or technically complex. These perceptions about ADR are supported by data from the interviews with legal advisors. Further, contractors' perceptions that the formal systems are manipulated in the dispute resolution process are confirmed. Legal advisors perceive that contractors generally adopt an adversarial approach by the time they seek legal advice and ADR is unlikely to be recommended or used in these circumstances. Non-binding ADR is unlikely to develop significantly as a dispute resolution procedure for main contractor and sub/specialist contractor disputes when the parties employ an adversarial approach or when the dispute is legally or technically complex. The research provides statistical and qualitative data about the factors involved in the choice of ADR by contractors and an analysis of its implications for the future development of ADR.