COVID-19 Impact on Dispute Resolution – The Utilization of Mediation in the Settlement of Construction Disputes in Malaysia
Abstract
COVID-19 has a profound effect on all facets of life, particularly the construction industry. It has also affected the conflict resolution in construction dispute resolution. Due to the impact of this pandemic, there will be a great deal of conflict among the parties involved. Even though many in the construction industry favour mediation, it is nonetheless employed significantly less frequently than adjudication and other conflict resolution techniques. Despite the efforts of Malaysian government to introduce the COVID-19 Mediation Centre or more known as PMC-19 as a tool for resolving disputes during COVID-19, the use of mediation remains minimal. This study intends to establish the use of mediation in settling construction conflicts in Malaysia during the COVID-19 outbreak. The objectives of the research are to identify the effect of the COVID-19 outbreak on mediation, to analyse the causes of mediation for not being fully utilised, and to appraise the approach to increase the usage of mediation as a dispute resolution method during COVID-19 outbreak in Malaysia. Qualitative data were collected through semi-structured interviews. Findings indicated that COVID-19 has replaced face-to-face mediation procedures with online mediation. In addition, many approaches to increasing the use of mediation as a means of settling construction disputes have been identified, the most significant of which would be the enforcement of mediation settlement by the Malaysian government. Future research should focus on the input from mediators, contractors, and all construction players to improve the usage of mediation as a settlement of construction disputes in Malaysia.
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Alase, A. (2017). The Interpretative Phenomenological Analysis (IPA): A Guide to a Good Qualitative Research Approach. International Journal of Education & Literacy Studies Vol. 5 No. 2, 9-19.
Ameer Ali, N. A. (2010). Mediation in the Malaysian construction industry. In P. Brooker & S. Wilkinson (Eds.) Mediation in the Construction Industry: An International Review. USA and Canada: Spon Press. , 82-107.
Azin Shakiba Barough, M. V. (2013). EVALUATING THE EFFECTIVENESS OF MEDIATION AND ARBITRATION PROCESSES IN RESOLVING DISPUTES IN THE MALAYSIAN CONSTRUCTION INDUSTRY. International Journal of Civil Engineering (IJCE), 21-28.
Bennett, S. C. (2018). CONSTRUCTION MEDIATION: BEST PRACTICES FOR SUCCESS.
Bukhari, K. Z. (2011). ARBITRATION AND MEDIATION IN MALAYSIA. Asean Law Association.
Chau, K. W. (1992). Resolving construction disputes by mediation: Hong Kong experience. Journal of Management in Engineering 8, no. 4, 383-394.
Cheung, S. O., & F.ASCE, K. H. (2013). Anatomy of Construction Disputes. JOURNAL OF CONSTRUCTION ENGINEERING AND MANAGEMENT.
Cresswell, J. W. (2007). Qualitative Inquiry & Research Design
Choosing Among Five Approaches. London: Sage Publications.
Danuri, M. S. (2012). A revisit on thecurrent practice of dispute resolution and ADR in the Malaysian construction industry. Journal of Design and Built Environment.
Department of Statistics Malaysia. (2021, November 21). Retrieved from The Source of Malaysia's Official Statistic: https://www.dosm.gov.my/v1/index.php?r=column/ctwoByCat&parent_id=76&menu_id=OEY5SWtFSVVFVUpmUXEyaHppMVhEdz09
Emre Cakmak, P. I. (2014). An analysis of causes of disputes in the construction industry using analytical network process . 2nd World Conference On Business, Economics And Management - WCBEM 2013.
Ian Trushell, B. C. (2012). CONSTRUCTION MEDIATION IN SCOTLAND: AN INVESTIGATION INTO ATTITUDES AND EXPERIENCES OF MEDIATION PRACTITIONERS. Civil Justice Quarterly, vol. 31, no. 4, 499.
Jackie Gregory-Stevens, I. F. (2016). Mediation in construction disputes in England. International Journal of Law in the Built Environment, 123-126.
Khalid K. Naji, M. M. (2020). Methods for Modeling and Evaluating Construction Disputes: A Critical Review.
Kuhendran, T., Yuong, D. L., & Singh, J. K. (2021, January 12). MALAYSIA’S COVID-19 ACT 2020 AND ITS IMPLICATIONS ON THE CONSTRUCTION INDUSTRY. Zul Rafique & Partners Articles. Retrieved from Zul Rafique & Partners.
Kumar, S. A. (2022, January 1). Is Mediation the way forward for Dispute Resolution in the Malaysian Construction Industry? Retrieved from 27Group website: https://27.group/is-mediation-the-way-forward-for-dispute-resolution-in-the-malaysian-construction-industry/
Law Insider. (2022, June 30). Retrieved from Law Insider: https://www.lawinsider.com/dictionary/mandatory-mediation
Malaysian Bar Council. (2013, January 7). Mediation Act 2012: Not So Bad After All. Retrieved from Malaysian Bar Badan Peguam Malaysia: https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/mediation-act-2012-not-so-bad-after-all
Malaysian Mediation Centre. (2022, July 06). Retrieved from Malaysian Mediation Centre: https://www.malaysianmediationcentre.org/what-is-mediation/mediators-rules-code-of-ethics/
Mania, K. (2015). Online dispute resolution: The future of justice. International Comparative Jurisprudence 1, 76-86.
Mercy Ogunnusi, M. H.-a. (2020). COVID-19 Pandemic: The Effects and Prospects in the Construction Industry. International Journal of Real Estate Studies, 120-128.
Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict.
Perot, K. A. (2018). The Advantages and Disadvantages of Mediation in the Chinese Commercial Arbitration Process. China and WTO Review, 117-132.
Rahim, N. E. (2018). The Suitability of the Use of Mediation in the Settlement of Construction Disputes in Malaysia. In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 118-124, pages 118-124.
Rajan, S., & Rajandran, L. (2021). An Overview of Mediation under the Pusat Mediasi Covid-19. Litigation, Mediation & Arbitration.
Rajoo, D. P. (2020). ASIAN INTERNATIONAL ARBITRATION CENTRE (AIAC) — TRANSFORMATION, GROWTH AND PROSPECTS. The Malayan Law Journal, 1.
Rauzana, A. (2016). Causes of Conflicts and Disputes in Construction Projects . IOSR Journal of Mechanical and Civil Engineering (IOSR-JMCE).
S H Zamani, R. A. (2021). Effect of COVID-19 on building construction projects: Impact and response mechanisms. IOP Conference Series: Earth and Environmental Science.
Section 9(1) Act 829. (2020). TEMPORARY MEASURES FOR REDUCING THE IMPACT OF CORONAVIRUS DISEASE 2019 (COVID-19) ACT 2020. LAWS OF MALAYSIA Act 829 .
Seng, H. (2020). Does the COVID-19 Outbreak Constitute a Force Majeure Event? A Pandemic Impact on Construction Contracts. Journal of Civil Engineering Forum, 6(2), 201-214.
Sobri, S. (2021). The Rise of Mediation as an Alternative Dispute Resolution Tool. Bar Council Malaysia.
Sourdin, T. a. (2020). Courts, mediation and COVID-19. Australian Business Law Review, 138-158.
Steffek, K. H. (2013). Mediation: Principles and regulation in comparative perspective . Oxford University Press, 291.
The Edge Editor. (2012, January 3). Putting KL on the arbitration map. Retrieved from theedgemarkets.com: https://www.theedgemarkets.com/article/putting-kl-arbitration-map
Vaidotas Trinkūnas, U. Q. (2021). Comparison of Mediation Systems in the Construction Industry of Two European Countries. J. Leg. Aff. Dispute Resolut. Eng. Constr.
Wesam S. Alaloul, M. W. (2019). A comprehensive review of disputes prevention and resolution in construction projects. MATEC Web of Conferences.
Zuhairah, A. A. (2010). Alternative Dispute Resolution in the Malaysian Construction Industry . In W113-Special Track 18th CIB World Building Congress, 51.
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