12. Voluntary Participation as an Incentive of Construction Dispute Mediation—A Reality Check

In recent years, the use of mediation as an alternative to arbitration/litigation has gathered momentum at both industry and national levels. One characterising feature of the mediation movement is keeping voluntary participation as one of the core design features of mediation arrangements. The use of mediation in construction has started in the mid-eighties in Hong Kong. Despite the concerted efforts of the Hong Kong Government and the mediation services providers, its adoption had soon flattened off after an initial rise. A slight decline in usage has in fact been recorded recently. Use of mediation to resolve construction disputes has not been as promising as expected. From a pragmatic point of view, this study identified four potential mismatches between contracting arrangements with the voluntary participation. These are (i) principal-agent relationship; (ii) power asymmetry between the parties; (iii) quasi-imposed adoption; and (iv) biases of the disputing parties on the process. It is concluded that voluntary participation may not directly lead to the adoption of construction dispute mediation.