Logistic Likelihood Analysis of Mediation Outcomes

Dispute persists in all building and construction projects. Alternative dispute resolution methods are now commonly used as a means to resolve construction disputes. Mediation, interalia, is the popular choice in Hong Kong due to its cost-saving, flexible, speedy, confidential, and voluntary attributes. In mediation, tactics used by a mediator is central in driving desired outcomes. This paper reports a study that employs logistic regression (LR) to predict mediation outcomes respective to the tactics used. To achieve this, three main stages of work are involved. First, taxonomies of mediator tactics and mediation outcomes were developed. With these, the second stage included the development of logistic regression models each with a mediation outcome taxonomy as dependent variables and the taxonomies of tactics as independent variables. In the third stage of the study, the LR models were validated using an independent set of testing data. The LR models suggested that “win-win settlement,” “progress,” “improvement,” and “time advantage” are responsive to mediator tactics of “ice-breaking,” “trust building,” “encourage for self-improve,” and “process control,” respectively. In addition, it is observed that these relationships are positively correlated.     

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.     

Adjudication: Temporary Binding and Tiered Dispute Resolution in Construction and Engineering: Hong Kong Experience

Hong Kong (under the “One Country Two Systems” Policy, Hong Kong, although an administrative region of the PRC operates a separate legal system, whose roots lie in the English common law system) has a justified reputation for being at the forefront of developments in techniques to avoid and resolve disputes in the construction industry. [This is illustrated by the adoption of the UNITRCAL Model Law by the Arbitration (Amendment) Ordinance 1996, specific powers given to Arbitral Tribunals under the Arbitration Ordinance (Cap. 341) including powers to consolidate, and the development of the dispute resolution adviser system. See the genesis, development and future use of the dispute resolution adviser system by Colin J Wall, Hong Kong Society of Construction Law dated November 17, 2004]. However, it has not, to date, seen the widespread adoption of adjudication as a means of resolving disputes. This article examines the history of the use of adjudication in Hong Kong, current trends, and offers some possible reasons for the limited adoption of adjudication.     

Drivers for Adopting Public Private Partnerships—Empirical Comparison between China and Hong Kong Special Administrative Region

The private sector has long been involved in delivering public sector projects, whether its role has been as a partner or just as a contractor for the government. Over recent years the interest in adopting public private partnerships (PPPs) has increased internationally. Many research studies have presented positive reasons for the governments and the private sector to welcome this form of procurement, rather than continue adopting the traditional options. This paper aims to explore and compare the key drivers for adopting PPP in China and the Hong Kong Special Administrative Region (referred to as Hong Kong from here onwards). An empirical questionnaire survey was conducted in both of these administrative systems and survey respondents were invited to rate their perceptions on the importance of 15 different drivers identified. Eighty-seven completed survey questionnaires were returned for analysis. The findings indicated that respondents from China rated economy-related drivers higher, whereas Hong Kong respondents tended to rate efficiency-related drivers higher. China’s demand for more public infrastructure and services has imposed great pressure on the government’s budget, and therefore economic drivers were rated higher. On the other hand, with adequate financial reserve in hand and budget surplus over recent years, Hong Kong has tended to prefer paying for projects upfront, and hence efficiency was regarded more significantly. Among the 15 drivers, both of the respondents from China and Hong Kong selected, “provide an integrated solution (for public infrastructure/services)” and “solve the problem of public sector budget restraint” to be within the top three drivers. Despite the general agreement on the ranking pattern, the results of independent two-sample t-test showed that China and Hong Kong shared very different views on the driver “reduce the total project cost.” This driver was ranked rather high by the mainland Chinese respondents, but much lower by the Hong Kong respondents. This finding can be construed that economic drivers are in general rated higher in China as compared to that in Hong Kong.     

Perspective from the United States: Tensions between “Getting It Done” and “Getting It Right”

For over 2 decades, and in response to complaints that arbitration was too expensive and too time consuming, the American construction bar has been energetic and innovative in developing a broad array of dispute resolution tools for resolving construction disputes. These “tools” have included “partnering,” mandatory negotiations, interim decision making by design professionals, mediation, standing neutrals and dispute resolution boards, minitrials, early neutral evaluation, and expert determinations, all developed as alternatives to arbitration and litigation. More recently, in 2006, a voluntary “fast track” process for resolving construction disputes within 100?days has been proffered by the CPR Institute for Conflict Prevention and Resolution. Yet, there are certain dynamics or “tensions” inherent within, and associated with, all construction disputes that continue to resist efforts to speed up dispute resolution processes; these tensions must be reconciled or taken into account before any fast track or “adjudication”-type process will be generally accepted in the United States construction industry. Thus, for now and in the foreseeable future, there will continue to be a smorgasbord of dispute resolution processes for resolution of construction disputes. This is a good thing, because parties to construction disputes come with a great variety of appetites and needs. The focus of attention should be, not so much on development of the ideal or best dispute resolution tool, but having a willingness to select the “best tool for the job,” after the nature of the dispute is known.     

Potential Obstacles to Successful Implementation of Public-Private Partnerships in Beijing and the Hong Kong Special Administrative Region

Public-private partnership (PPP) has been practiced for quite some time around the world and there are numerous infrastructure, construction, and building projects which are employing the concepts. Unfortunately, not all of these PPP projects are equally successful and some of these projects have been exposed to formidable obstacles. The need to identify potential obstacles for PPP projects is therefore becoming an important issue for both research and practice. Despite the amount of interest vested in PPP, it is normally the advantages of PPP that are touched on rather than the potential obstacles. Both Beijing and the Hong Kong Special Administrative Region (referred to as Hong Kong from here onwards) have been keen to introduce more PPP projects. This paper presents part of the findings of an empirical questionnaire survey in relation to the prevailing barriers to PPP success conducted in these two administrative systems. It was anticipated that the obstacles would be similar for these jurisdictions. Respondents were asked to rate the level of severity of thirteen potential obstacles toward PPP projects identified from a literature review. The top three obstacles rated by the Beijing respondents were found to be “lengthy delays in negotiation,” “lack of experience and appropriate skills,” and “lengthy delays because of political debate.” Similarly the first and third obstacles ranked by the Beijing respondents were also ranked within top three by the Hong Kong respondents, together with “very few schemes have actually reached the contract stage (aborted before contract).” It was also discerned that “less employment positions,” “reduce the project accountability,” and “high project costs” were all ranked bottom by both of the Beijing and Hong Kong respondents. Moreover, the results obtained in the United Kingdom reported in other studies also shown consistency with those of Beijing and Hong Kong. Therefore the research hypothesis was proved to be true. Although the importance of the obstacles was similar it was realized that the scores obtained in the United Kingdom survey were much lower. This observation showed that the British respondents were less threatened by the obstacles, probably due to the fact that they are much more experienced and confident in undertaking PPP projects compared to Beijing and Hong Kong. Further analysis of the data reflected that the responses within each administrative system were consistent as revealed from the Kendall’s concordance analysis. Although the Spearman rank correlation test indicated that there was no significant disagreement on the rankings of obstacles between respondents of the two administrative systems, considerable difference was detected by the independent two-sample t-test in the mean value of their responses between the two administrative systems for the two obstacles lack of experience and appropriate skills and lengthy delays in negotiation. In Beijing, respondents felt that lack of experience and appropriate skills were highly important ranking it second place, but in Hong Kong this obstacle was ranked eighth, showing their confidence in experience and skills. For lengthy delays in negotiation, although the ranking between Beijing and Hong Kong was similar the difference in score showed a large variation. This represents a difference in tendering procedures between the two administrative regions. Triangulation with real cases largely supports the survey findings.     

Chinese Values and Stressors of Construction Professionals in Hong Kong

The construction industry has been recognized as a stressful industry, and a great deal of stress is placed on various construction professionals (CPs). However, due to the different “values” among CPs in Hong Kong, susceptibility to stressors varies from individual to individual. People who grow up and live in different cultural environments have different values and this leads to different perceptions of stressors. This study aims to investigate the impact of Chinese values on the stressors of CPs in Hong Kong, one of the main cities in China. To achieve this aim, factor analysis, Pearson correlation analysis, and structural equation modeling were applied based on the survey data collected from CPs in Hong Kong. Four types of Chinese values and eight stressors are identified. The results reveal that: (1) social conventions value alleviate role ambiguity and poor workgroup relationship; (2) value of disciplined work ethos triggers work overload, although it alleviate poor workgroup relationship and work underload; (3) value of conservative personality alleviates work overload; (4) interpersonal integration value has indirect impacts on the various stressors; and (5) the objective poor working environment stressor has significant impact on the poor workgroup relationships and role ambiguity of individual CPs.     

Contractor as Trust Initiator in Construction Partnering—Prisoner’s Dilemma Perspective

Partnering has been advocated for use in construction as a project-delivery approach to curb dispute and enable a cooperative contracting environment. Successful construction partnering is perceived to derive benefits to both developers and contractors. In view of significant implications to successful project delivery, there has been a surge of research and studies on construction partnering. These studies typically focus on the partnering process as well as the identification of critical success factors. Among the various success factors that underpin partnering success, establishing trust among partners is considered the most important. Moreover, skeptics have been swift to point out that establishing trust in construction is daunting. A better understanding of the role of trust and its manifestation in partnering efforts is therefore of both academic and practical value. In this study, motivating trust in construction partnering is described within the classic framework of “the prisoner’s dilemma,” which suggests the trust cycle can be kick-started if construction partners put cooperation before competition and self-interest. This paper reports a study that is designed to suggest a suitable candidate for the trust initiator. As such, the critical trust factors for two groups of construction partners in Hong Kong—developers/consultants and contractors—are first identified. It is found that “performance” and “permeability” of partners are the two most critical trust factors. “Performance” describes the partner’s competence and problem-solving ability as perceived by their counterpart. “Permeability” reflects the partner’s openness in sharing information. The result of a multiple-regression analysis further suggests that the contractor is in a position to initiate trust through competent performance and maintaining effective communication with the client. In this manner, the trust cycle can expand with reciprocal trustworthiness from the client.     

Exploring Critical Success Factors for Partnering in Construction Projects

The construction industry is a very competitive high-risk business. Many problems, such as little cooperation, lack of trust, and ineffective communication resulting in adversarial relationships between contracting parties, are facing the construction industry. Partnering is perhaps one of the most innovative developments in delivering a project efficiently and reducing construction disputes. It provides a sound basis for a “win-win” climate and synergistic teamwork. Project partnering in the Hong Kong construction industry has gained in popularity since 1994. A number of potential factors contributing to partnering success have emerged and deserve further study. This paper presents a review of the development of the partnering concept in general and identifies critical success factors for partnering projects from the Hong Kong perspective in particular. Through a postal questionnaire survey geared toward project participants with hands-on partnering experience, the opinions of various parties—clients, consultants, and contractors were sought and evaluated in relation to partnering success factors. The relationship between the perception of partnering success and a set of success factors hypothesized in the study was derived using factor analysis and multiple regression. The results indicated that certain requirements must be met for partnering to succeed. In particular, the establishment and communication of a conflict resolution strategy, a willingness to share resources among project participants, a clear definition of responsibilities, a commitment to a win-win attitude, and regular monitoring of partnering process were believed to be the significant underlying factors for partnering success. Such an identification of success factors could well formulate effective strategies for minimizing construction conflicts and improving project performance.     

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.     

Project Dispute Resolution Satisfaction Classification through Neural Network

This paper presents an artificial neural network technique of analysis in determining the important factors affecting the outcome of construction dispute resolution processes in Hong Kong. Projects were classified as Favorable or Adverse in terms of Dispute Resolution Satisfaction in accordance with conventional professional practice for deciding on which disputes get resolved. The necessary historical project data sets were collected through structured interview and questionnaire surveys to provide the training details for the building of a Multi-Layer Perceptron artificial neural network. The preliminary analyses conducted indicated that resolution outcome depends on a combination of factors, namely, environment-, organization-, project-, and process-specific. The refinements to the network were achieved through reduction of the numbers of variables and processing elements. Verification of the “Best” network was achieved through the running of a batch function for stabilization. The optimal network so produced was applied to unseen data and achieved a 100% correct testing result for adverse DRS projects. The optimal network also identified design changes as the most critical factor, indicating that projects with a high degree of design changes were more likely to result in dispute requiring the service of alternative dispute resolution techniques or formalized proceedings.     

Empirical Study of the Risks and Difficulties in Implementing Guaranteed Maximum Price and Target Cost Contracts in Construction

Over the past few decades, both the guaranteed maximum price (GMP) and target cost contracting (TCC) arrangements have been regarded as alternative integrated procurement strategies for clients to mitigate risks, minimize claims, integrate the diverse interests of a complex construction project, and offer incentives to provide value-added services. However, the adoption of GMP/TCC contracts may also generate significant risks and difficulties that merit considerable attention. This paper aims to provide a concise review of the potential pitfalls of the GMP/TCC scheme in general and identifies the key risk factors and potential difficulties associated with GMP/TCC in comparison with other procurement strategies in construction in particular via an empirical survey of clients, contractors, and consultants in Hong Kong. The survey data gleaned from 45 valid replies were analyzed using the mean score ranking technique, Kendall’s concordance test, and Spearman’s rank correlation test. The survey results indicated that “involvement of inexperienced or claim-conscious contractors in a project procured by a GMP/TCC contract” was considered to be the most significant risk factor; while “design development must keep pace with main contractor’s program for tendering the domestic subcontractors’ works packages” as the major difficulty in implementing GMP/TCC projects. The research findings derived from this study are particularly essential in assisting the contracting parties to mitigate the detriments brought about by potential risks or difficulties when embarking on GMP/TCC contracts. It has also generated valuable insights into developing effective recommendations for alleviating the barriers to GMP/TCC success for future construction projects.     

Factors Influencing Building Contractors’ Pricing for Time-Related Risks in Tenders

The contractors’ pricing for contract risks in tenders determines how much the employers have to pay for the risk transfer. Therefore, understanding the factors influencing the contractors’ pricing for contract risks is crucial for employers to optimize the cost effectiveness of risk allocation in contracts. This study investigates the factors that contractors perceive to be important when they are pricing “time-related” contract risks. A questionnaire survey was designed for collecting data from building contractors currently operating in Hong Kong. Contractors were not only required to rate the importance of individual factors, but also to state the cost implications when compared with normal pricing in the absence of the concerned factor. The findings reveal that a single factor may have two-sided implications (both inflating and deflating the prices) for which they can be in unequal scales. These scales vary according to the contractor size and the reasons of the differences are investigated. The findings also assist employers in formulating a cost effective contract strategy by equipping them with the necessary knowledge.     

Contributors to Construction Debris from Electrical and Mechanical Work in Hong Kong Infrastructure Projects

The crucial problem of construction debris is of increasing concern in Hong Kong. In the construction industry, the electrical and mechanical (E&M) installations in the infrastructure, for example, buildings, tunnels, or dams, are some of the major and usually complex components. Difficulty in coordinating the various trades affects productivity in general, and has a major impact on the quantity of construction debris. By identifying the sources of waste at each stage of E&M engineering work, some of the construction debris can be eliminated at the source during production. This paper investigates the critical production shortcomings in the E&M sector in Hong Kong. The study is based on a survey that includes a preliminary questionnaire survey, brainstorming exercises with a focus group, structured interviews with experienced frontline supervisors, and a second focus group exercise to test findings and proposed measures. The principal findings are that “poor coordination” and “design changes and/or errors” are major contributors to variations or change orders and rework, which in turn result in a high volume of construction debris. The results also indicate that construction debris can be minimized in the E&M sector of the construction industry, if the material wastes from incidental work are reduced and also controlled better in a new work process flow pattern through recommended construction project management improvements for reducing critical production shortcomings.     

Teaching Engineering Surveying in a Civil Engineering Program: Curriculum, Pedagogy, and Assessment

As engineering surveying is highly concerned with its intensive involvement in the construction of roads and bridges, drainage systems, buildings, railways, and tunnels in civil engineering, the subject of engineering surveying is being offered by the Department of Land Surveying and Geo-Informatics to all undergraduate students who are taking the Bachelor of Civil Engineering Degree Program in the Department of Civil and Structural Engineering at The Hong Kong Polytechnic University. Under the new outcome-based curriculum and work-integrated education requirements, the curriculum, pedagogy, and assessment for the subject are described here by answering the questions of “what are the goals and objectives of the curriculum,” “what should students learn,” and “how should it be learned, taught, and assessed.”     

Legal Framework for Alternative Dispute Resolution: Examination of the Singapore National Legal System for Arbitration

Effectiveness of any alternative dispute resolution (ADR) method depends on the national legal system to which it is subjected. In Singapore, the increasing growth in the use of ADR methods may be adduced to developments in the Singapore legal environment. This paper reviews the characteristics of the Singapore national legal system for arbitration. It examines how the legal system facilitates effective use of ADR. By its features, the Singapore national legal system ensures parties’ autonomy but deters parties from taking opportunistic advantage of the voluntary nature of ADR. It enables procedural flexibility, and confidentiality of arbitration proceedings. It insulates the arbitration process from intervention from the Singapore courts and from corruption; and it provides maximum judicial support in the arbitral process. Hence, it ensures that disputes can be brought to a conclusion within a reasonable amount of time, at a reasonable cost, as well as preserving business relationships. The Singapore legal system insures the integrity of arbitration and the independence of arbitrators and arbitral institutions by immunity provisions. In addition, the legal system enhances the use of mediation and conciliation in a sequential tier with arbitration by providing a time limit for mediation or conciliation to terminate should they fail to produce a mutually acceptable settlement. In Singapore, the court system is generally known to be efficient; hence, ADR faces the practical challenge of becoming lengthier than court proceedings. The continuing search for and use of expedited arbitration procedures by arbitral institutions such as the Singapore International Arbitration Centre should reduce this challenge. This paper provides useful information on how a national legal system may be designed to support the use of ADR methods and facilitate their effectiveness.     

Divorce mediation.

Mediation is a growing alternative to the adversarial settlement of divorce disputes that is part of a broader movement toward the private ordering of divorce. Problems with the indeterminant "best interests" standard and evidence from psychological research make mediation particularly appealing for settling child-custody disputes. Although some encouraging evidence is available on diversion of disputes from courts and consumer satisfaction with mediation, there is a considerable need for further research. Moreover, a number of practical, legal, and ethical questions about mediation remain unanswered. Psychologists can play a vital role in systematically evaluating divorce mediation and in shaping policy in regard to its practice. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Pedagogy of Teaching Value Management in Postgraduate Construction and Property Program

As value management (VM) has been increasingly applied to enhance value in public construction projects, the core subject entitled “Value Management for Construction and Property” is being offered to postgraduate students in the Department of Building and Real Estate at the Hong Kong Polytechnic University. Under the new outcome-based curriculum, the learning outcomes, pedagogy of teaching VM, and activities of the VM workshops for the subject are described in this paper. The results of a questionnaire survey of the students’ feedback on the performance of the workshops for the academic year 2007–2008 are presented and discussed. Students believed that value management workshops are essential in the curriculum. They expressed that it was a valuable experience to participate in the VM workshop which enabled them to have a better understanding of the subject. Some improvement is also recommended for future organization and management of workshops based on the lessons learned in these workshops.     

Patterns of psychological test usage in Hong Kong in 1993.

The authors surveyed test usage among 50 clinical and educational psychologists in Hong Kong and compared results with those of previous surveys in Hong Kong, China, and the United States. Although testing trends in Hong Kong have remained relatively unchanged, especially regarding the use of intellectual tests and simple projective measures, the use of specific self-administered psychiatric rating scales appeared to rise above that of the time-consuming multiscale personality inventories. Neuropsychological batteries and vocational inventories remained infrequently used. The constraints posed by translation and renorming and the need for test development with the collaboration among psychologists in different Chinese societies are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Exploring Factors for Ethical Decision Making: Views from Construction Professionals

The construction industry has experienced malpractice, which is a significant cause for concern. Does the nature of the industry provide some hint for tracing the underlying reasons of the relatively severe ethical problems in construction? Can one of the most influential stakeholders in the industry, the professionals, improve the situation? This study was conducted in Hong Kong to investigate what kinds of ethical problems are faced by construction professionals, and to explore the factors influencing their ethical decision making. Statistical factor analyses identified six intuitive underlying factors that affect ethical decision making when construction professionals are facing ethical dilemmas in the industry. Four of them influencing decision making are “deontological factor,” “consequential factor—egoism,” “consequential factor—utilitarianism,” and “legal requirement.” Two other factors are “oneself/family” and “stakeholders.” Results show that construction professionals’ ethical behavior is guided by legal requirements. When making ethical decisions, they adopt an egoism approach that prioritizes their self-interest and their families’ interests higher than the public’s interest; they would consciously evaluate the consequences of any unethical behavior.