A revisit on the current practice of dispute resolution and ADR in the Malaysian construction industry (original) (raw)
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Mediation: The Best Private Dispute Resolution in the Malaysian Construction Industry?
… Pacific Association of …, 2009
Private dispute resolution (PDR) refers to settlement of disputes "other than litigation" which is not open to the public. This includes mediation, adjudication and arbitration. Of the three PDRs, arbitration and mediation are promoted in the Malaysian construction industry. Notwithstanding the continuing reliance on litigation as the approach to solve construction disputes, arbitration was slowly accepted by the industry. As arbitration is more applied, it was realized that arbitration can be adversarial, and that a more "friendly" approach to solve disputes need to be considered. Consequently, mediation was introduced and promoted. However to date, its application has been poor.
Problematic issues in litigation are evidenced by thousands of cases backlog in the Malaysian courts. One of the recommended solutions is active utilisation of private dispute resolution. However, preliminary research conducted indicates that the private dispute resolution is not widely accepted. Thus, this research tends to investigate the reasons behind. The methodology of this research is mixed methods of quantitative and qualitative. Empirical data for quantitative research was collected via cross sectional survey and qualitative research was gathered via in depth semi-structured interviews. Out of 1000 sampling frame of G7 contractors in Malaysia only 231 responses were received and analysed quantitatively and 30 interviews were conducted consists of 18 experienced in arbitration and 12 experienced in mediation. Verbatim data was recorded, interview transcriptions were reverted back to the respondents and analyses of qualitative data were performed via qualitative software. Critical issues were addressed in the analyses and recommendation to further utilise and enhance private dispute resolution has been made. Consequently, a framework to further utilise and improve private dispute resolution in the Malaysian construction industry was proposed and validated by 18 construction professionals, construction law experts and representatives from government agencies. The result observed that active supports from various agencies are crucial and dispute resolution should be simple in order to ensure active utilisation in the Malaysian construction industry.
Critical factors affecting the use of alternative dispute resolution processes in construction
International Journal of Project Management, 1999
The use of Alternative Dispute Resolution (ADR) techniques in construction have gained great momentum in the public sector during recent years in Hong Kong. The Hong Kong Government has initiated the inclusion of ADR methods as an integral part of the dispute resolution procedure in the standard forms of contracts for use in Government projects. However, the use of ADR in the private sector has not been apparent, probably due to lack of experience and knowledge. This paper discusses the philosophies behind ADR and reports on an evaluative study on the critical attributes of ADR techniques. Two evaluation methods, scale rating and percentage rating, were employed to establish attribute importance rankings through soliciting views from practitioners with ADR experience. The attributes were then grouped into factors as extracted from Factor Analysis. The rankings of the factors so obtained from the two evaluative methods match well. The study reveals that users of dispute resolution processes are pragmatic and consider obtaining benefits as the most critical factor affecting the use of ADR in the construction industry in Hong Kong. Such benefits include cost minimisation and relationship preservation. It is also suggested that if ADR is to sustain its growth in use, these processes must facilitate a speedy resolution.
International Journal of Sustainable Construction Engineering and Technology, 2019
There is a significant increase in the role of construction industry for the last few decades accompanied by a considerable upsurge in the construction disputes as well. Arbitration has constantly become popular, and strengthened its position as it can be settled within the stipulated time compared to litigation. However, the arbitral process takes longer which leads to fast track arbitration. Fast track arbitration is designed to enable arbitration to proceed quickly, which can minimize the time and optimize the cost. The proliferation number of construction disputes from construction industry has emerged the importance in using fast track arbitration as one of the preferable Alternative Dispute Resolution (ADR). Regardless of frequent developments made to overcome the issues, however, there is an insignificant figure on the usage of fast track arbitration in the construction industry. This paper therefore aims to elicit a better understanding of the application of fast track arbitration in the Malaysian construction industry. Twenty (20) total number of participantsconstruction arbitratorswere interviewed to record their experience. A proposed framework for the application of fast track arbitration has been constructed from the responses to expand the current definition. With the changing practice environment, construction arbitrators need to be aware of the existing fast track arbitration which is crucial in ensuring its efficiencies to be applied in Malaysia, and this paper is intended to aid this process.
The viability of implementing dispute board in Malaysia
2011 IEEE Symposium on Business, Engineering and Industrial Applications (ISBEIA), 2011
This paper is performed mainly to introduce Dispute Board (DB) as the one of the many Alternative Dispute Resolutions (ADRs) to be applied into the Malaysian construction industry to reduce and minimize the amount of disputes. This research is carried out by interviewing nine respondents which consist of registered Quantity Surveyors. Litigation and arbitration has been widely applied in Malaysia for dispute settlement. Both methods, however, do become more tedious and arduous processes to go through to resolve disputes. Mediation, on the other hand, has been a new alternative for dispute settlement in the Malaysian construction industry. Nevertheless, arbitration and mediation have not yet made a big impact in the numbers of disputes arising in the Malaysian construction industry. Therefore, this paper unveils the viability of implementing Dispute Board as a better and more efficient method of ADR that is determined in the outset of the project. Dispute Board is able to reduce the amount of disputes arising in the Malaysian construction industry.
A Mechanism for Dispute Resolution in the Iranian Construction Industry
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If disputes are not resolved promptly, they tend to become prolonged and escalated, creating a more complicated and less manageable scenario. Therefore, in this study, we formulated a mechanism for dispute resolution in the Iranian construction industry based on alternative dispute resolution methods. The formulated mechanism could aid disputing parties in the construction industry to settle their disputes more effectively and enhance dispute resolution methods in construction standard forms. To achieve this goal, we collected qualitative data using semi-structured interviews with 30 experts who were selected via purposive sampling method. We used MAXQDA software to manage and organise complete interview transcripts and facilitate the qualitative data analysis process. The proposed mechanism and guidance were finally validated using the survey questionnaire. Negotiation has equal potential for dispute resolution with different sources, and it is recommended as the first step in disp...
Construction Dispute Resolution in Indonesia
Proceedings of Narotama International Conference on Civil Engineering 2015, 2015
Construction projects involve many parties from different background and interests (e.g. owner, engineer, supplier, consultant, and contractor), thus, conflicts or disputes among the involved parties are common to happen during planning and construction stages. The aim of this paper is to study the practice of construction dispute resolution in Indonesia. A thorough literature review of construction dispute resolution and open ended interviews with 40 participants (i.e. 20 contractors, 10 owners, and 10 neutral parties) were conducted. The most frequently disputes are identified in 4 aspects (i.e. technical, administration, legal, and combination of technical, administration, and legal aspects). In addition, the preferable construction dispute resolutions are discussed based on each dispute perspective. This article concludes that (i) the most frequent disputes occurrence in Indonesia are caused by technical aspects, (ii) negotiation is chosen as the most preferable construction dispute resolution in Indonesia, and (iii) there are four main priorities in construction dispute resolution in Indonesia (Preservation of Relationship, Confidentiality, Neutrality, and Enforceability).