Mediation in the Construction Industry: An International Review

This book is written by two academics. Its stated aim is to identify the emerging practices within construction mediation and to seek solutions to the many legal and commercial challenges facing mediation development. The editors claim that the book achieves the aim by the production of an international collection of monographs. This reviewer agrees it does. But the question has to be to what effect; why? The countries included are an eclectic mix: Australia, Germany, Hong Kong (SAR, China), Malaysia, New Zealand, South Africa, Turkey and England and Wales. I need to be clear from the start; I am a fan of books like this: international comparisons. There is much to be learned from other disciplines and the law has developed this into a discipline in its own right: comparative law. Comparative law is the study of differences and similarities between the law of different countries and it involves the study of different legal systems throughout the world. Of course globalization has increased the importance of comparative law. There are several texts in construction which use this comparative technique: e.g. liability and insurance (Knocke, 1995), conflict and dispute (Fenn et al., 1998) and now, mediation. However, there are problems with the comparative approach; here the most important is that comparative law requires a holistic approach, i.e. the study looks at the legal system in its entirety. It is difficult to consider individual sections of the law, because other areas, not considered, might be influential. Individual techniques, as is the case here with mediation, are difficult to consider in isolation from other areas. The earlier examples of this genre, Knocke (1995) and Fenn et al. (1998), both include detailed guidance produced by the editors to the contributors. This book does not seem to do this, and the variation in the national monographs makes useful comparison difficult. The problem with books such as this is that they end up as a potpourri and fail to facilitate meaningful comparison. This book tries hard to avoid this; the editors provide a discussion chapter and attempt to summarize the national monographs. The natural reaction from the reader is to demand a summary but perhaps this is just too complex a subject to summarize in a readily digestible manner. The summaries are the national monographs themselves and that is the minimum which can be achieved. A further problem is that it plays into the hands of the critics who say that mediation is not real law; it is not a viable subject in its own right and that it stretches what theory there is very thinly indeed. As an example: why such concentration on adjudication? Adjudication is not mediation. At one point the introduction describes a variety of dispute resolution techniques; there is no attempt to be exhaustive but the editors include expert witness. Quite how expert witness constitutes a common method of resolving disputes in the construction industry escapes me. Is it a book about mediation for construction professionals or is it a book about construction for mediation professionals? The book does not achieve either. So this is one for your shelf if you are interested in mediation in various countries; but it is not a mediation book.