The potential of bias in multi-tier construction dispute resolution processes

Disputes have been identified as the inevitable happening in adversarial and competitive construction contracting activities. Amicable dispute resolution is mostly welcomed by the construction industry. Major changes in Hong Kong construction dispute resolution landscape have emerged since the Civil Justice Reform came into effect in 2009. It can be observed that wider use of alternative dispute resolution (ADR) methods has been advocated. As such, multi-tier dispute resolution processes incorporating ADR have become the design protocol for dispute resolution provision in contracts. Moreover, the use of multi-tier dispute resolution does not guarantee dispute can be resolved. In some cases, multi-tier resolution processes may create unintended obstacles.This study aims to review the use of multi-tier dispute resolution processes. In addition, issues, in particular, obstacles against settlement arising from the use of multi-tier dispute resolution processes are explored. The research began with literature review on relevant government documents, ordinances, books and journal publications. Furthermore, expert opinions from industry stakeholders are solicited. Real life stories are collected to illustrate the aforementioned propositions.The study identified three key causes of failure of multi-tier dispute resolution. First, the negative attitude and loss of commitment of either party arising from any of the tiers would diminish the chance of settlement. Second, psychological and cognitive attributes, especially the negative dimensions of the disputants can be aggravated. Third, multi-tier resolution may allow creeping in of biases in the decision making process. The study points to further study on the ways to alleviate the aforementioned failing causes.