Case Studies on Negotiation and Mediation for Coastal Zone Conflicts

The cases detailed in this paper provide insight into the application of negotiation and other forms of alternative dispute resolution (ADR) to resolve heated disputes over the use of coastal resources. Three examples are provided to demonstrate the possible outcomes when ADR techniques are applied to resolve increasingly common coastal disputes. The first case between Chevron and the Surfrider Foundation is described to provide an example of how negotiation can result in unique innovative solutions that are unlikely to come out of normal legal proceedings. The second case involves the mediation of the disagreement between nature conservationists and the Dyke Associations in Jade Bay, Germany. This case provides an example of how a mediator can help disclose each party’s interests to transform an ongoing stalemated dispute into a unanimous agreement. The third case details the quarrel between the Surfrider Foundation and a coastal developer in Rincón, Puerto Rico, where the case was successfully negotiated but then later resulted in undesirable and unmitigated consequences for both parties.     

Arbitral Tribunal Proceedings Case Study: Egyptian Large-Scale Construction Project

This paper investigates how arbitration is used as a dispute resolution mechanism in Egyptian large scale construction projects and what are the types of issues that construction professionals should address when they encounter claims in the Egyptian construction market. To meet the goals and objectives of this study, a research project was conducted to study the arbitration process for a dispute that was in excess of $31 million, which arose out as a result of the proceeds of a large-scale project with an original contact price of $85 million that was constructed in Cairo, Egypt. This research project analytically investigated the background of the conflicts, the arbitral proceedings, and the award issued by the arbitral tribunal. Based on such thorough study, it was concluded that arbitration did not provide a timely and cost-effective resolution for the said dispute. Moreover, the same study has raised questions in relation to the overall management of megaconstruction projects in Egypt namely: (1) the impartiality of project managers; (2) the magnitude of change orders and consequent delays; (3) the magnitude of claimed amounts; and (4) the level of management and administration of claims and disputes. It is perceived that this paper would trigger professionals to think of other suitable dispute resolution mechanisms, such as dispute review boards, for settlement of claims arising from Egyptian large scale construction projects. Furthermore, this study would be of value for contractors and owners who intend to work in the Egyptian construction market.     

Alternative Dispute Resolution Techniques: Design Professional's Perspective

Alternative dispute resolution (ADR) techniques offer members of the design‐construct community the opportunity to resolve disputes without having to resort to expensive and lengthy litigation. Disputes inevitably arise because elements of the design‐construct process, such as contracts, specifications, and personnel, are not perfect. Even with a qualified project team that is dedicated to the construction of a quality project, some disputes will occur. Knowing this, a project team's primary objective should be to anticipate circumstances which might generate a dispute and to develop proactive strategies for dealing with such circumstances. When a dispute does occur, internal negotiation should be tried first. This process involves decision makers—those involved financially and those who understand the ultimate impacts of the dispute on the quality and long‐term success of the project. Lawyers should not actively participate in internal negotiation except as a last resort. If this process does not generate a settlement, mediation and arbitration should be tried before commencing litigation proceedings. ADR is an approach to dispute resolution that may be less expensive and time‐consuming, and is more likely to yield “win‐win” settlements than other dispute resolution techniques.     

Legal rights of the physician as the defendant

Until recently, physicians were confronted with a certain risk of prosecution typical of the medical profession such as personal injury or sometimes manslaughter. Now, physicians are compelled to face accusations apparently outside of this profession such as fraud, embezzlement, or cheating. When physicians get contact with the executive power (i.e. on the occasion of a search), it should be questioned whether one is seen as an accused or as witness. Both positions contain different rights and duties. The witness always has to testify. He can refuse to testify due to personal and professional reasons. Additionally, he may refuse to answer questions that would expose himself or a relative to the risk of charges. According to the German constitution, the witness may request the support of a lawyer. The main duty of the accused is to endure the proceedings against him. There is no option to appeal against the opening of criminal proceedings. The most important rights of the accused are the right to refuse the testimony and the right to be heard at court. The right of hearing includes the right to decide about the time and kind of a possible attendance during the proceedings. This right should be used in any case. Every unconsidered or uncertain statement may be of severe disadvantage. It is regularly indicated to ask a lawyer for legal support which is also the right of the accused. During testimony, the physician faces the problem whether he is allowed to reveal facts that are subject of medical discretion. He has the right to do so if he is unable to refute the accusation otherwise leading to legal sanctions or to a charge. The specific rights and options of an attorney include the scrutiny of the procedures of the executive power and the active participation to find the true facts of the case. It is the attorney but not the accused who has the right to examine the records. Both have the right to influence the criminal proceedings by contribution of evidence.     

Adjudication: Singapore Perspective

Adjudication was introduced into Singapore under the Building and Construction Industry Security of Payment Act of 2004. The Singapore regime is the seventh of its kind, taking after the precedent regimes in the United Kingdom, Australia (in the states of New South Wales, Queensland, Victoria, and Western Australia), and New Zealand. The adjudication regime in Singapore most closely resembles the regime in New South Wales under the Building and Construction Industry Security of Payment Act of 1999. Based on the statistics currently available, it would appear that the Singapore regime has enjoyed some success thus far in achieving its policy objectives of expediting payment and improving cash flow within the construction industry. There is some indication that this has been due to a positive change in the underlying mindset towards payment in the construction industry. Nevertheless, it remains to be seen whether this success can be sustained and improved upon. This may have wider implications including a possible reduction in the use of litigation and arbitration proceedings for resolving construction payment disputes in Singapore.     

Judging Unreasonable Litigation Behavior at the Interface of Mediation in the English Jurisdiction

Civil procedure rules (CPRs) in the English jurisdiction were introduced to restrain the adversarial and expensive litigation activities of the legal profession. Judges use case management to fix timetables for preaction meetings, disclosure, and trial dates. Under CPR both the judiciary and the parties have a duty to consider ADR alternatives such as mediation. Costs sanctions were implemented to keep in check unreasonable litigation practices and prevent the parties and their lawyers from creating delay and unwarranted expense. Evidence exists that construction parties are beginning to utilize mediation tactically both in the settlement phases activated by CPR and during the mediation process itself and some lawyers are reported to adopt an adversarial approach in mediation. This paper examines case law from the English jurisdiction on the application of the principle of “unreasonable behavior” in litigation to analyze how effective the specialist Technology and Construction Courts (TCCs) are in countermanding the strategic interplay of mediation within CPR and to determine the developing legal rules on mediation. Case law indicates that judges in the TCC are using costs sanctions to control abuse of the preaction protocols where there is a “substantial” lack of compliance but the Halsey criteria demonstrates an uncertainty in the application of the guidelines for delay and the timing of mediation, which can impact on the expense of litigation and may result in abuse or costs injustices. Further case analysis shows that negotiations in mediation are protected by the privileged status of “without prejudice statements” but unreasonable conduct in mediation will be examined by the court if both parties waive privilege or the abuse is such that it reaches the bar set for “unambiguous impropriety.” Further protection is provided through a developing principle of confidentiality but judges are likely to use their discretion in the “interests of justice,” for example, where there are allegations of economic duress. Neither unambiguous impropriety nor economic duress is likely to encompass uncooperative or adversarial approaches within the process or hard negotiations.     

The Effective Mediator

Mediation is becoming the premier method of resolving disputes within the construction industry. The linchpin to the mediation process is the mediator. An effective mediator may make the difference between mediation success or failure. Yet, considering the importance of an effective mediator, there is a dearth of information as to the attributes of one and how to recognize and retain one. Considering the importance of mediation in the arbitration process as well as the trend toward court ordered mediation, it behooves industry members to understand the attributes of an effective mediator. This paper will discuss the skills an effective mediator needs to assist the parties in moving forward, crafting a sustainable settlement as well as leave the disputing parties and their counsel satisfied with the process and result. It will alert readers what to look for when engaging a mediator’s service and what questions need to be asked in the quest for the effective mediator to assist in the resolution of disputes.     

Trial consultants: Perceptions of eligible jurors.

How do eligible jurors perceive trial consultants? A survey was administered to 1251 participants from 50 states. Results indicated that individuals who thought the legal system was fair, those who earned higher incomes, and Anglo Americans rated trial consultants most favorable. Survey respondents estimated that 43% of court cases use trial consultants, and 18% of participants indicated that if they knew one side was using a trial consultant, they would be biased against the side that hired the consultant. Trial consultants need to consider the potential impact their presence makes during the course of legal proceedings and make the necessary adjustments to improve their services. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Legal Issues of Integrated Network for Construction and Real Estate Sector

In Singapore, one of the most important steps in the overall information technology strategy for the construction and real estate sector is the development of an integrated network for the sector to cover the entire life cycle of any development. It is the first of its kind in the world. The productivity and competitiveness of the construction and real estate sector have been greatly enhanced through the introduction and implementation of the adopted integrated network since 2002. Some of the legal issues related to the integrated network are global trading, contract enforceability, liability risks, security breaches, and intellectual properties protection, a lack of alignment in jurisdictions, confidentiality, legal liability, and service dependency risks. The paper addresses online security and legal issues related to the integrated network for the sector to establish trust and confidence among the end users of the system. Some of the legal issues encountered during the implementation and lessons learnt will also be briefly discussed.     

Evolution of Statutory Adjudication as a Form of Dispute Resolution in the U.K. Construction Industry

This paper reports on the rapid growth in the use of this form of dispute resolution and its apparent decline. It considers how this novel form of dispute resolution has changed in nature from its original limited role of providing a speedy and inexpensive process of resolving disputes so that cash could flow in the industry and be of help primarily to those in the lower reaches of the subcontracting chain into a highly developed legal process which has increasingly been utilized for large and contractually complex disputes. Statutory adjudication is still used extensively in the U.K. construction industry as the method of choice to resolve disputes, many of which would previously have gone to court or to arbitration. Data for this study were provided by the Adjudication Reporting Center at Glasgow Caledonian University.     

Defining a threshold for client competence to participate in divorce mediation.

The ultimate aim of court-ordered divorce mediation is to produce settlement agreements. Once ratified by the court, these agreements are legally binding and extremely difficult to modify. Courts assume that everyone is adequately equipped to mediate and, with increasing frequency, order litigants into mediation. Nonetheless, commentators have acknowledged that at least occasionally, a party may be unable to proceed. Currently, no standard exists for determining when a party lacks sufficient understanding and ability to participate in mediation, yet the legally binding outcomes of mediation are too important to leave a determination of competence up to chance. In this article, the authors propose a new legal standard, with a basis in current law and policy, for competence to participate in mediation. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The family, the courts, and mental health professionals.

Discusses the different facets of the role of mental health professionals (MHPs) in the legal system. The MHP's role in the family court is compared with that in the criminal court. In the family court, MHPs generally deal in crisis intervention, evaluation, and referral for treatment. Involuntary civil commitment and child abuse are also major issues. MHPs are called on to intervene in divorce and child custody proceedings. Some state legislatures have mandated the employment of MHPs in mental health clinics attached to the courts. (0 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

“Is That Not Horrific?”—or “You Have Been Warned!” Burchell v. Bullard and Implications for English Construction Law

In recent times, the cost of litigation has emerged as a serious issue in construction law. This paper examines the approach adopted by the English Courts in the light of recent reforms to the civil justice system and important case law. Important legal decisions indicate a change in judicial attitudes to Alternative Dispute Resolution (ADR) which was previously thought to be unenforceable by reason of uncertainty until very recently. This paper looks at the development of so-called “ADR law” in the English courts and discusses policy issues behind the recent case of Burchell v. Bullard. The paper concludes that although the English Courts will not impose ADR on unwilling parties, draconian cost sanctions await those who unreasonably reject ADR before proceeding to trial. Guidance is given on the tricky legal issue of how to ascertain whether a refusal is reasonable or unreasonable by exploring recently decided cases. The in-depth examination of Burchell v. Bullard gives an insight into how the judiciary approach perplexing questions of reasonableness in cases where a verdict of “unreasonable rejection” can have catastrophic cost implications for litigants.     

Insight into Resolving Construction Disputes by Mediation/Adjudication in Hong Kong

Resolving construction disputes using an adversarial approach is considered to be in opposition of the maintenance of a harmonious relationship between two parties. The modern arbitration process may emulate the litigation proceeding leading to delay and cost escalation. During the past decade, the Hong Kong Government has implemented a mediation clause as an alternative mode for settlement of construction disputes. In this paper, the experience and insight into resolving construction disputes by integrating mediation and then arbitration in Hong Kong are highlighted. The state-of-the-art modern mediation process and its philosophical origins are reviewed. The shortcomings of the present system are pinpointed. The success of the adjudication now practiced in the United Kingdom may suggest that there is a place for another process of dispute resolution, which may help improve the situation. The prospect of the proposed mediation/adjudication and then arbitration mechanism is discussed with particular reference to the construction industry in Hong Kong.     

Mediation∕Arbitration: Alternative Dispute Resolution Process

Interest in alternative dispute resolution (ADR) techniques for the construction industry has grown in recent years. Traditional litigation has been criticized on several fronts. The traditional procedures are often cumbersome, expensive, and lengthy. The outcome of litigation is uncertain and often confusing. For certain cases, alternative procedures may be useful in quickly resolving disputes. Sometimes there is no alternative to litigation. Each case is unique, and the appropriate form of dispute resolution mechanism must be established for each project. This paper reviews the process of mediation∕arbitration, and compares that process to other alternative dispute resolution procedures.     

The effect of arbitration program characteristics on applicants' intentions toward potential employers.

The authors examined intentions toward prospective employers with different alternative dispute resolution (ADR) policies and no ADR policy. In Study 1, students (N?=?124) were randomly assigned to 1 of 4 conditions in which 2 variables, arbitration policy presence or absence and firm desirability, were manipulated. The presence of a voluntary, nonbinding arbitration policy had no impact on intentions and did not interact with firm desirability. In Study 2, students (N?=?273) were randomly assigned to 1 of 8 conditions (mandatory vs. voluntary arbitration, binding vs. nonbinding arbitration, and highly desirable vs. less desirable employer). Both mandatory and binding arbitration policies were related to less favorable intentions toward firms. Predictions regarding the interaction of ADR policy and firm desirability were partially supported. Some support was found for the interaction between ADR policy and ethnicity. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Structural basis for specificity of Grb2-SH2 revealed by a novel ligand binding mode

The procedures of the arbitration committee of north Germany for medical liability claims are discussed. This procedure is set into relation to that at court. Due to the continuously maintained communication between lawyers and physicians, which does not occur in a comparable manner in court, the choice to proceed at a arbitration committee and an expert board is seen as more useful and pertinent than at court. This is specifically explained.     

Serum growth hormone-binding protein is decreased in prepubertal children with idiopathic short stature

Every activity of a medical practitioner may be subjected to court control. This creates not only uncertainty gut also anger amongst most physicians. However, it is clear that no court judgement against a physician will be made without the competent support of independent medical experts. On the basis of the relevant legal literature and judgments, the present article is an attempt to consider medical errors in the administration of contrast media, to describe the required medical informed consent before such measures, and to discuss the ever increasing importance of adequate documentation in the light of malpractice proceedings. importance of adequate documentation in the light of malpractice proceedings. This is followed by a discussion of the very important medical necessity to inform the patient about recommended behaviour after injections of such contrast media, the responsibility question in both civil and criminal terms in case of an incident, and various tips for steps to be taken in the case of a liability action.     

Global Legal Issues for Engineers and Constructors

When performing engineering and construction (E&C) throughout the world E&C personnel need to be aware of the differences in legal systems and how contracts are enforced in different countries. This paper provides information on some of the international legal conventions, regional legal issues, and comparative legal systems. Next the paper addresses international engineering and construction contracts by providing a discussion on the clauses that could differ in contracts throughout the world and which clauses are important to include in international contracts. Specific contract clauses are examined in relation to how their inclusion or exclusion might impact global engineering and construction projects. The next section presents issues related to claims and change orders along with a brief discussion of dispute resolution techniques including international arbitration and contract clauses related to dispute resolution techniques. Anticorruption legislation is mentioned along with kidnapping and ransom insurance because both of these issues are increasing in importance in the global E&C arena. Liability issues that firms might face in the global E&C marketplace are explained along with risks associated with currency valuations and local labor conditions. A table of clauses pertinent to global E&C contracts is provided to help firms prepare for projects in foreign nations.     

Effects of mediation and alternative forms of arbitration on bargaining behavior: A laboratory study.

84 business students participated in a face-to-face collective bargaining simulation in which Ss assumed the roles of union and management negotiators. Two mediation and 4 arbitration conditions were manipulated. Dyads bargaining under total-package, final offer arbitration left significantly fewer issues unresolved than did dyads bargaining under conventional arbitration or issue-by-issue final offer arbitration. Whereas mediation did not have an independent effect on bargaining behavior, it interacted significantly with mode of arbitration to influence bargaining behavior. Under the mediation condition, more issues were left unresolved under conventional arbitration than under any other anticipated form of 3rd-party intervention. On the other hand, under the no-mediation condition, total-package/final-offer arbitration and no arbitration resulted in the fewest number of unresolved issues. (21 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)