Understanding the potential for mediation between contracting authorities and economic operators in public infrastructure projects

Abstract

The highly contentious nature of construction disputes should provide ample opportunities for the exploration of mediation, and other ADR processes specifically developed to deal with matters arising from the construction sector. Within the context of public infrastructure projects handled by Contracting Authorities, there is increased responsibility and a duty for accountability to ensure taxpayers’ money is not spent frivolously in legal costs and longwinded judicial or arbitration proceedings that could have, arguably, been avoided. However, locally the use of ADR leaves much to be desired. In seeking to make proposals for reform based on the Maltese public procurement framework, this study seeks to better understand the dynamics of a construction dispute, and the different ADR mechanisms that are employed in the construction sector as described by numerous academics and also employed in other jurisdictions. The qualitative component of the research serves to engage with key professionals to better understand the potential of mediation and other identified ADR processes which may be transposed onto the Maltese public landscape. This is also necessary due to the lack of empirical data about construction disputes, specifically disputes between Contracting Authorities and Economic Operators. While mediation is but one ADR tool, it is the most flexible and dynamic process which could be implemented in a project design, no matter its size or scope. The study advocates for a thorough rethink of the way disputes are approached in Malta, taking into account developments in the field which not only embrace ADR, but also dispute avoidance.