Resolving Construction Disputes Through Mediation Within Arbitration Proceedings In China

The construction industry has been facing increasing numbers of claim disputes.Commonly used methods for dispute resolution consist of negotiation,mediation,arbitration and litigation.Negotiation is the preferred method;however,in the case of failure,disputants have to choose a more effective and powerful method.Mediation within arbitration proceedings is a striking aspect of the arbitration process in China.An arbitrator–mediator,namely an arbitrator playing the role of a mediator during the hearing of the same case,can revert back to the arbitrator role at any moment deemed appropriate to give an award in the case of mediation failure.As no law tightly prescribes mediators' behavior patterns and no explicit legal restraints are given to mediators,in practice arbitrator-mediators use flexible and diverse mediation tactics,some of which are commonly preferred by experienced arbitrator-mediators.In addition,in the specific social and legal culture of China,construction disputants always have complicated psychologies in mediation proceedings,forming characteristic mediation barriers.Moreover,facing a mediator with the role of an arbitrator instead of an independent mediator,disputants may show different attitudes.Multiple research methods were used in a two-stage study,which consisted of collecting and analyzing qualitative data through semi-structured interviews,content analysis,and statistical analysis in the first stage and gathering and analyzing quantitative data through a questionnaire survey and statistical analysis in the second.This study found six categories of mediation tactics: seize mentality of disputants,hint intention of arbitrator,grasp details of case,illustrate benefits of mediation,explain risks of arbitration and state principles of resolution,in sequence of superiority,and fourteen subcategories pertaining to various categories;and three categories of mediation barriers: feature of delegate appearing in court,nature of disputant subject,and psychology of disputant party,sequentially,with seven subordinate subcategories.Mediators were also considered to be more powerful with an arbitrator role.When resolving construction disputes through mediation within arbitration proceedings,mediators should make strategic choices of mediation tactics and gain incisive insight into mediation barriers to improve the effectiveness and efficiency.The findings give an insight into how arbitrator-mediators should deal with different mediation barriers through choosing the most fitting tactics in a certain situation and help disputants and attorneys to understand the disposition of arbitrator-mediators and the psychology of the opposite party in the Chinese context with the aim of improving performance.This paper serves as a window for critical scholars and foreign mediators to understand the mediation practice rooted in the legal-cultural and political-cultural aspects of Chinese society.