Factors which impact on the choice of alternative dispute resolution in the construction industry

The stated aim of this thesis is an empirical investigation into the factors which impact on\nthe development and choice of Alternative Dispute Resolution (ADR) as a dispute\nresolution procedure between contractor and sub/specialist contractor in the construction\nindustry of England and Wales. The methodology selected to achieve this aim was the\ncollection of both quantitative and qualitative data through a postal survey and in-depth\nfollow-up interviews. A further study of legal advisors to the construction industry was\nundertaken to investigate their attitudes towards ADR and to assess the influence of legal\nadvisors in the choice and use of ADR by contractors. The research provides evidence\nthat contractors are considerably dissatisfied with the costs, speed and adversarial\napproach of both arbitration and litigation and that many of the advantages of ADR,\nwhich are promoted its proponents, are held as perceptions by contractors. These\nattitudes are resulting in contractors being significantly interested in using ADR.\nHowever, the research confirms that ADR is not used extensively and provides data to\nshow its use is hindered by negative perceptions, first, that it can be used to create delay\nin the settlement of disputes and, second, its non-binding nature is a weakness. The\nresearch indicates that contractors are likely to confine the use of ADR to small financial\ndisputes and that arbitration and litigation are likely to continue to be preferred for large\ndisputes. The development of ADR is likely to be further restricted by contractors'\nperceptions about the limitations of ADR for construction disputes. Contractors do not\nperceive ADR to be appropriate for disputes where the parties have become adversarial\nand entrenched in their position nor where the dispute is perceived to be legally or\ntechnically complex. These perceptions about ADR are supported by data from the\ninterviews with legal advisors. Further, contractors' perceptions that the formal systems\nare manipulated in the dispute resolution process are confirmed. Legal advisors perceive\nthat contractors generally adopt an adversarial approach by the time they seek legal advice\nand ADR is unlikely to be recommended or used in these circumstances. Non-binding\nADR is unlikely to develop significantly as a dispute resolution procedure for main\ncontractor and sub/specialist contractor disputes when the parties employ an adversarial\napproach or when the dispute is legally or technically complex. The research provides\nstatistical and qualitative data about the factors involved in the choice of ADR by\ncontractors and an analysis of its implications for the future development of ADR.