Reflections on the requirement for construction contracts in writing under HGCRA

The deletion of section 107 of Part II of the Housing, Grants and Construction Act 1996 will have a profound effect on the requirements for contracts in writing under the adjudication provisions of the new Construction Act 2009. This paper presents a reflection on the legal provisions and case law concerning the requirement for contracts in writing under the provision of the 1996 Act, against the backdrop of new rules encompassing oral and partly-oral agreements between parties. While the new provisions are unlikely to have an impact in cases where there are formal contracts which incorporate adjudication clauses, the changes are more likely to have an impact where there letters of intent are involved and where contracts in writing are based on standard terms and conditions supplemented by oral agreements. While the legislative changes may not have an impact on the role of the Adjudicator, it may affect their modus operandi, requiring more efforts to ascertain the precise intentions of the parties under dispute

An evaluation of a contract management simulation game for architecture students

Architects are currently grappling to exploit new forms of communication made possible with developments in internet communication. At the same time, the construction industry is in a state of flux as novel project management systems are being introduced. Students need to understand the first principles of project management within the context of our changing environment. One of the best ways for students to learn about the legalities of the construction process is through role play and simulation but there is a Catch 22. Unless students have a basic understanding of project management, the contractual process can be confusing and intimidating. Even fifth and sixth year architecture students are reluctant to ask practitioners questions for fear of appearing ignorant. This paper presents an evaluation of the cost and benefits of a web-based simulation game to deliver the Architecture studies curriculum. The webbased game allows students to critically observe the transformation of designs into buildings through the exploration of the contract management process. A questionnaire survey was used to assess how the computer simulation operates as a group exercise, how it compares with more traditional approaches and the best and worst features of the web-based system. The students found the game to be practical, enjoyable, motivating and effective in stimulating the learning process. The benefits of the web-based game were also found to outweigh the costs, thus providing support for its use as an active learning tool in Architectural Education

The use of project case histories to assess undergraduate students' understanding of professional practice issues within architecture

This case study documents and reflects on the experience of introducing a practice-based assignment into the professional practice curriculum that enabled third year Architecture students at Strathclyde University to deepen their understanding of practice through the development of project case histories. It outlines the issues involved including the benefits which may be gained and the problems encountered in the process of assessment

The impact of legislative change on adjudication provisions and the requirement for written contracts under the new construction act

The deletion of section 107 of Part II of the Housing, Grants and Construction Act 1996 will have a profound effect on the requirements for contracts in writing under the adjudication provisions of the new Construction Act 2009. This paper presents a reflection on the legal provisions and case law concerning the requirement for contracts in writing under the provision of the 1996 Act, against the backdrop of new rules encompassing oral and partly-oral agreements between parties. While the new provisions are unlikely to have an impact in cases where there are formal contracts which incorporate adjudication clauses, the changes are more likely to have an impact where there letters of intent are involved and where contracts in writing are based on standard terms and conditions supplemented by oral agreements. While the legislative changes may not have an impact on the role of the Adjudicator, it may affect their modus operandi, requiring more efforts to ascertain the precise intentions of the parties under dispute

Construction clients and mediation: a follow-up study of attitudes and experience

Construction disputes by their very nature are often complex, sometimes multi-party disputes, many of which are not suited to either adjudication or traditional forms of dispute resolution (these being potentially slow, expensive and divisive). The sheer complexity of construction disputes often leading to expensive, time-consuming and stressful paths being trodden through the traditional resolution terrain, creates a compelling case for the introduction of alternative approaches within this adversarial industry. The construction industry has become increasingly aware of the substantial legal costs it burdens itself with as a consequence of its high incidence of disputes. Moreover, this expenditure, which globally represents a substantial sum each year, is by no means reflective of the hidden costs of disputes, such as the damage to reputations and commercial relationships; cost of time spent by executive personnel; and cost of lost business opportunities. Over recent years, the Scottish Government and key players in Scottish commerce have emerged as advocates of mediation as a first choice method of settling disputes. The value of mediation has also been widely acknowledged worldwide, as evidenced by the number of jurisdictions in which the courts enforce obligations on parties to negotiate and adopt mediation to settle construction disputes. In most contexts, voluntary uptake of the process is low, however, and research into prospective client perceptions is particularly valuable. The principal aim then of this study was to explore construction participants’ [construction clients hereafter] awareness, attitudes and experiences relative to mediation, drawing upon quantitative and qualitative analyses of small and medium-sized contracting firms in Scotland. This was reflected in the main objectives of this research which were to evaluate the effectiveness of prevailing construction dispute resolution methods in Scotland; establish baseline information about the current extent of construction mediation activity in Scotland, determine the willingness of Scottish construction clients to shift away from traditional approaches to dispute resolution to mediation; and if they are, to ascertain the drivers towards the adoption of mediatory techniques, and if not the barriers to change

The production cycles of the Scottish construction industry, 1802-2002

The revival of Scotland's national Parliament has focussed attention on potential differences in institutions and industries north of the border, compared to the rest of the UK. The Scottish construction industry, as with its counterparts anywhere, has developed enormously over the past two centuries and has experienced fluctuations due to internal and external influences. Much has been written about business cycles and building cycles relating to the construction industry in England, but this does not give a useful context for studies of the Scottish industry. This analysis of long-term time-series data is part of a larger project, looking historical aspects of the construction industry in Scotland, particularly the place of women in the industry, in order to establish aspects of the context and economic climate in which women found roles in the industry. This paper aims to use a wide range of data over the period in order to consider the Scottish experience. Has the Scottish construction industry's output demonstrated a cyclic nature in the last two centuries? What influences any such cycles? How do the cycles and any influences compare with the rest of the United Kingdom? Whereas most previous commentators, such as Cairncross, Rodgers and Glendinning , have mainly used housebuilding statistics as a tool for discussing the business cycles of the construction industry, this paper has gathered statistics for a wider range of construction activities. These are employed to show how the Scottish construction industry has its own pattern of long and short cycles. The patterns of boom-bust cycles associated with external events (such as wars or financial depression) or government intervention (such as housing policy or subsidies) can clearly be identified and compared with cycle patterns and shapes due to other effects such as industry structural features and credit availability

A follow-up empirical analysis of Scottish construction clients' interaction with mediation

Although across many jurisdictions, mediation’s origins (in the modern sense at least1) often lay in the dispute areas of family and community matters, in recent years the process has begun to take root in the arena of construction disputes (for an international review of developments see Brooker and Wilkinson 2010). In contrast to traditional means of resolving disputes, it is contended that mediation may be a quicker, cheaper, less adversarial and more harmonious form of dispute resolution than traditional methods

The impact of mediation practice on the resolution of grievances, the preservation of employment relationships and termination

'While many [employment disputes] are resolved informally, an increasing number progress into external resolution procedures such as mediation. While these procedures seek to resolve grievances and preserve employment relationships, many end with termination' (Walker and Hamilton, 2015). This paper explores how mediation practice might be affected by each of the three purposes outlined above: resolution of grievances, preservation of employment relationships and termination? The paper also draws upon the literature on employment mediation to consider the ethical and practical consequences of these distinct goals

Mediating planning disputes : opportunities, experiences and challenges

There is no dearth of academic research into the apparent benefits of mediation as a tool for the resolution of planning disputes. Several eminent lawyers have proffered their support for the use of this alternative dispute resolution mechanism within the UK planning system. Further, formalized mediation regimes have been introduced into the respective planning systems of a number of international jurisdictions, with apparent success; for example, in Australia, 34% of all planning disputes are now resolved via a form of mediation. Notwithstanding this apparent evidence-base, in England and Wales a substantial number of property developers, local authorities and planning professionals continue to believe that mediation is not useful or appropriate as a mechanism for resolving planning disputes and, despite early indications that a formalized mediation regime would be developed and adopted in England and Wales, to date no such regime has been implemented . This present research paper seeks to examine why this apparent 'mediation paradox' continues to exist and critically evaluates whether or not there does indeed exist a 'business case' for the introduction of a formal mediation regime within the UK planning system

The co-optation of the techniques and languages of alternative dispute resolution : a critical assessment of developments in the UK

Alternative Dispute Resolution (ADR) is a consensual process where the parties agree to come to a solution, which means that autonomy is a central characteristic of this category of dispute resolution processes. Tidwell identifies that “mediation is predicated upon mediation’s flexibility informality and consensuality opening up the full dimension of the problem facing the parties. Parties come to mediation because it is flexible and thus convenient. Mediation is used because it is not adversarial, but rather seeks to satisfy the needs of the presenting parties”. The very nature of mediation and other ADR processes is that it is based upon a consensual process, which is outside of the judicial system. The problem with co-optation is that it is judicialising ADR processes through avenues such as mandatory mediation or adjunctive adjudication processes .The implication of this is that there is a framework in place that is no longer consensual in nature; rather, it is merely an extension of the coercive power of the judicial system. In the UK, there is arguably a system of co-optation through Civil Procedure Rules (CPR) and Family Procedure Rules (FPR), because instead of promoting consensual mediation and ADR processes they are coercing individuals to comply with an obligation to engage in ADR prior to entering the courts. Thus, this paper is going to examine the content of the CPR and FPR to determine whether there is a process of cooptation is occurring within English law