International Journal of Law in The Built Environment最新文献

{"title":"In the context of mediation, is safeguarding mediator neutrality and party autonomy more important than ensuring a fair settlement?","authors":"Katherine Chalkey, Martin Green","doi":"10.1108/IJLBE-10-2015-0016","DOIUrl":"https://doi.org/10.1108/IJLBE-10-2015-0016","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to explore the appropriate role and approach of mediators and investigate whether mediator neutrality and party autonomy should prevail over mediators’ obligations to remain neutral where non-intervention would result in unfair settlements. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The paper arises from polarising and paradoxical opinions of the legitimacy of mediator intervention. This paper relies upon theories proposed in peer-reviewed journals, together with secondary data. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000Mediator neutrality has no consistent or comprehensible meaning and is not capable of coherent application. Requirements for mediator neutrality encourage covert influencing tactics by mediators which itself threatens party autonomy. Mediator intervention ensures ethical and moral implementation of justice, removal of epistemological implications of subjective fairness and compensation for lack of pure procedural justice in the mediation process. Party autonomy requires mediators to intervene ensuring parties adequately informed of the law and equal balance of power. \u0000 \u0000 \u0000 \u0000 \u0000Research limitations/implications \u0000 \u0000 \u0000 \u0000 \u0000Peer-reviewed journals and secondary data give meaningful insight into perceptions, opinions and beliefs concerning mediator neutrality, party autonomy and fair outcomes. These data comprised unstructured-interviews and questionnaires containing “open-ended” questions. \u0000 \u0000 \u0000 \u0000 \u0000Practical implications \u0000 \u0000 \u0000 \u0000 \u0000Mediator neutrality and party autonomy are less important than fair settlements. \u0000 \u0000 \u0000 \u0000 \u0000Social implications \u0000 \u0000 \u0000 \u0000 \u0000Mediator neutrality should be given a contextual meaning; mediation should be more transparent affording the parties opportunity to select a particular type of mediator; transformative and narrative approaches to mediation should be further developed. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This paper exposes the myth of mediator neutrality – a popular concept demanded by and anticipated by the parties but which is practically impossible to deliver. It also shows the need for mediator intervention to ensure a fair outcome.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122495670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An investigation into the different styles of the lawyer and construction specialist when mediating construction disputes","authors":"R. Wall, N. Ankrah, J. Charlson","doi":"10.1108/IJLBE-01-2015-0002","DOIUrl":"https://doi.org/10.1108/IJLBE-01-2015-0002","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000The purpose of this paper is to assess the views and experiences of mediators from different professional backgrounds practising in the construction industry. Previous research shows that the legal profession dominates construction mediation in both England and Wales. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The phenomenological approach was used to capture the lived experiences of the interviewees and gain insight into their views and practices. The data collection was by semi-structured interviews. The data was then analysed using software to establish themes. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The major difference in mediator practice discovered between the two groups is the use of the evaluative style by lawyer and facilitative style by non-lawyer mediators. Non-lawyer mediators strongly reported their criticisms of the evaluative style in mediation suggesting that it undermines the parties’ ability to self-determine their own dispute and reduces the level of satisfaction experienced by the parties in the process of mediation. Lawyer mediators supported the use of the evaluative style as an acceptable compromise on the parties’ self-determination and feelings of satisfaction in pursuit of achieving the goal of a settlement in mediation, which was significantly better than the escalation of stress and costs to the parties in the event that the dispute escalates to litigation. In addition, mandatory mediation, the role of advisors/advocates, governance and the future of mediation were explored. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000The research is anticipated to be of particular benefit to parties considering referring a construction dispute to mediation.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130545430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward a research roadmap for construction mediation","authors":"D. Ilter, Pınar Irlayıcı Çakmak, Yaprak Arici Ustuner, E. Tas","doi":"10.1108/IJLBE-02-2016-0003","DOIUrl":"https://doi.org/10.1108/IJLBE-02-2016-0003","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to outline the state-of-the-art and research contributions in the construction mediation domain to determine whether existing research is compatible with a future scenario envisioning a wider adoption and more systemised use of mediation in the construction industry and to develop a research agenda based on key challenges facing mediation. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000A systematic procedure based on keywords was adopted for the selection of relevant research contributions in the area, and a meta-classification framework has been designed based on independent classifications of the content, method and authorship to analyse the publications. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000Research contributions in the past decade mostly focused on perceptions of professionals on mediation and the dynamics of the mediation process and mediator tactics. Based on the challenges identified, proposed research agenda includes court-connected mediation, mediation in public projects, project mediation, documentation of case studies of mediation applications and use of IT in mediation. \u0000 \u0000 \u0000 \u0000 \u0000Research limitations/implications \u0000 \u0000 \u0000 \u0000 \u0000The publications investigated in this study are limited to scholarly articles published in the mainstream construction management journals and can be expanded to books or articles published in law journals if required. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000Existing literature includes important contributions regarding many aspects of construction mediation, however, a holistic agenda is lacking to overcome the key challenges to the widespread use of mediation in the construction sector. The research directions presented in this paper is expected to contribute to the proliferation of the neglected areas and constitute the basis for the development of a research roadmap in the construction mediation domain.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126887315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mediation in construction disputes in England","authors":"Jackie Gregory-Stevens, I. Frame, C. Henjewele","doi":"10.1108/IJLBE-02-2015-0004","DOIUrl":"https://doi.org/10.1108/IJLBE-02-2015-0004","url":null,"abstract":"Adjudication was introduced to the English construction industry in 1996 in response to its litigious nature. At the time, adjudication aimed to provide a time-efficient, cost-effective solution to construction disputes. The industry is concerned that adjudication is not always providing the expected benefits due to increasing cost, the length of time it takes to resolve disputes and the difficulty in maintaining good relationships between the parties in dispute. Mediation is recommended here as a most desirable approach to resolving disputes without affecting the relationship between the parties. However, the benefits of mediation have not been fully appreciated by all due to slow uptake. This paper aims to identify barriers to the greater use of meditation the English construction industry.,This paper presents results from a study that investigated issues preventing greater use of mediation. The study involved 20 case studies of previous dispute resolutions, ten in-depth interviews and 357 usable responses to a structured questionnaire survey involving the English construction industry.,The research found a limited detailed awareness of mediation within the English construction industry due to a lack of detailed knowledge among industry stakeholders and a lack of emphasis from construction contracts. The study revealed that there is strong support for adjudication; however, the majority of those with experience of adjudication would prefer to use mediation as the first step in resolving disputes.,This research identifies the support required for mediation and its preference among those with and without prior knowledge of both adjudication and mediation for the English construction industry. The paper provides an insight into barriers that need to be addressed to increase use of mediation.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115079475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Construction disputes in small to medium enterprise’s in Ireland during recession: Identification of critical factors","authors":"David Treacy, J. Spillane, P. Tansey","doi":"10.1108/IJLBE-10-2014-0031","DOIUrl":"https://doi.org/10.1108/IJLBE-10-2014-0031","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to identify the critical factors causing construction disputes in small to medium enterprises (SMEs) in Ireland during the recent recession period from 2007 to 2013. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000This study used a mixed-method approach incorporating a literature review, case studies and questionnaire survey, with results analysed using exploratory (data reduction) factor analysis. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The results indicate seven core critical factors which result in construction disputes in SMEs in Ireland during a recession: payment and extras; physical work conditions; poor financial/legal practise; changes to the agreed scope of works; time overrun; defects; and requests for increase in speed of project and long-term defects. \u0000 \u0000 \u0000 \u0000 \u0000Research Limitations/implications \u0000 \u0000 \u0000 \u0000 \u0000With Ireland emerging from the current economic recession and the prevalence of SMEs in the construction sector, it is essential to document the core critical factors of construction disputes which emerge within this particular segment of the built environment. \u0000 \u0000 \u0000 \u0000 \u0000Practical Implications \u0000 \u0000 \u0000 \u0000 \u0000To address the adversarial nature of the construction sector and the prevalence of SMEs, it is essential to identify and document the critical factors of construction disputes within this remit. It is envisaged that the results of this research will be acknowledged, and the recommendations adopted, by construction SMEs, particularly within Ireland, as they emerge from the economic recession. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This paper fulfils a gap in knowledge with the emergence of the economic recession and the identification of critical factors of construction dispute within SMEs in the Irish construction industry.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130518578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The polluter pays principle and the remediation of the land","authors":"E. Lees","doi":"10.1108/IJLBE-11-2014-0033","DOIUrl":"https://doi.org/10.1108/IJLBE-11-2014-0033","url":null,"abstract":"Purpose The purpose of this article is to examine the national law regimes related to the remediation of contaminated land. Design/methodology/approach The methodology used is comparative. Models for different systems are described on the basis of varying interpretations of the polluter pays principle. The regimes present in the Member States are then analysed to see which model they have adopted. A comparator from each model group is then considered. Findings This article presents three key findings. First, it concludes that the extent to which additional national legislation relating to environmental damage is permitted, which depends upon the notion of “more stringent” legislation, is incoherent where more than one interpretation is given to the polluter pays principle. Second, the different interpretations given to the principle undermine harmonisation. Finally, this has wider implications for how we justify liability for contaminated land. Originality/value This comparative study of the interpretation of the polluter pays principle, through its implementation in Member States, provides a valuable and novel insight into environmental liability regimes in Europe. It also demonstrates the different type of regimes that are developed on the basis of such different interpretations. Although the different national attitudes to contaminated land policy and remediation have been considered before, this article adds to this debate by suggesting a central cause of such variation in the shape of different interpretations of a principle of the European Union.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127044703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adverse possession and boundary disputes: lessons for Ireland from abroad","authors":"Una Woods","doi":"10.1108/IJLBE-05-2015-0010","DOIUrl":"https://doi.org/10.1108/IJLBE-05-2015-0010","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to examine the remedies currently available in Ireland to resolve boundary disputes to assess the importance of the role played by adverse possession in this context. It also examines the potential impact of certain reforms in this area of law. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The research methodology is primarily doctrinal, although a comparative approach is adopted for the purposes of assessing whether certain lessons can be learned from recent reforms to the English law on adverse possession and the Australian approach to resolving boundary disputes, which relies heavily on mistaken improver and building encroachment legislation. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000This paper demonstrates how the current law leaves certain mistaken improvers or encroachers on neighbouring land without a remedy, as they cannot rely on the doctrine of proprietary estoppel or adverse possession. If Ireland decides to replicate the English good faith requirement in relation to adverse possession of boundary land, the remedial vacuum facing these mistaken improvers or encroaching builders will become more pronounced. It is submitted that any such reform should be supplemented by the introduction of legislation akin to that operating in Australia which would facilitate the consideration of a broad range of factors and provide for flexible remedies to resolve such difficulties. It is also submitted that the legislation imposing such a good faith requirement should be carefully drafted to avoid the potential interpretative difficulties associated with the English reforms. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000Boundary disputes are an unfortunate fact of life. The prevalence of boundary disputes and high costs associated with boundary litigation makes this review and critique of the current law and potential reforms highly relevant.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"120 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131562839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Visual approaches to property law pedagogy","authors":"Francis King","doi":"10.1108/IJLBE-02-2016-0004","DOIUrl":"https://doi.org/10.1108/IJLBE-02-2016-0004","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to consider a more visual approach to property law teaching practices. This will be achieved by exploring the existence of “visual learners” as a student body, evaluating the use of more visual teaching techniques in academic practice, recognising the historic dominance of text in legal education, and examining the potential for heightening visual teaching practices in the teaching of property law. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The paper reviews and analyses some of the available literature on visual pedagogy, and visual approaches to legal education, but also introduces an amount of academic practitioner analysis. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000This paper evidences that, rather than focusing on the categorisation of “visual learner”, the modern academic practitioner should use the customary use of more visual stimuli, consequently becoming a more “visual teacher”. This paper demonstrates that these practices, if performed effectively, can impact upon the information literacy of the whole student body. It also proffers a number of suggestions as to how this could be achieved within property law teaching practices. \u0000 \u0000 \u0000 \u0000 \u0000Practical implications \u0000 \u0000 \u0000 \u0000 \u0000The paper will provide support for early-career academic practitioners, who are entering a teaching profession in a period of accelerated and continual change, by presenting an overview of pedagogic practices in the area. It will also provide a stimulus for those currently teaching on property law modules and support their transition to a more visual form of teaching practice. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This paper provides a comprehensive overview of visual pedagogy in legal education, and specifically within that of property law, which has not been conducted elsewhere.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"235 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133562966","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The factors influencing mediation referral practices and barriers to its adoption: a survey of construction lawyers in England and Wales","authors":"A. Agapiou","doi":"10.1108/IJLBE-07-2014-0018","DOIUrl":"https://doi.org/10.1108/IJLBE-07-2014-0018","url":null,"abstract":"Purpose – Following an analysis of English construction lawyers’ perceptions, attitudes and practices relative to mediation, this paper aims to offer an insight into the initial stages of the legal decision-making process, involving an examination of the degree of control construction lawyers’ exercise over the decision-making process itself, as well as an analysis of the factors that determine the decision to use mediation. The empirical work thus far focuses on the different potential barriers to mediation that typically characterize the relationship clients’ and legal advisors, addressing to divergent monetary interests, non-monetary and psychological interests and barriers in the principal–agent relationship. Design/methodology/approach – Based on a quantitative survey of legal advisors in England and Wales (n = 212), the purpose of this paper is to explore mediation, specifically the factors that support its use, barriers that hinder use and the perceptions of the efficacy and level of effectiveness ...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"471 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122728546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The acceleration dilemma: can English law accommodate constructive acceleration?","authors":"Alan Whaley, B. Mcadam, P. Crowe","doi":"10.1108/IJLBE-11-2014-0034","DOIUrl":"https://doi.org/10.1108/IJLBE-11-2014-0034","url":null,"abstract":"Purpose – The aim of this paper is to explore the hypothesis that a contractor is entitled to payment for “constructive” acceleration implemented to avoid liquidated damages when denied a warranted time extension request by the employer or certifier under an English law construction contract. This claim is recognised in the US legal system, but not elsewhere. Design/methodology/approach – This paper adopts a “black letter” approach to reviewing the claim of constructive acceleration within the context of English and Commonwealth case law, from the perspective of a claimant contractor. Findings – The research presented in this paper concludes that whilst claims for constructive acceleration are unlikely to succeed in an English court on the basis of US law, a claim might be supportable on more orthodox common law grounds. These include implied instructions under the contract, breach of the contract based on the employer or certifier’s failure to operate the contract, mitigation of damages, unjust enrichmen...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130477797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}