Voluntary participation has been treated as a prerequisite for the use of mediation. It is believed that when disputing parties mediate at their own will, they will be more likely to undertake a bona fide negotiation whereby the prospect of reaching a settlement is enhanced. Thus, voluntary participation has been recognized as an indispensable design feature of mediation. For construction dispute resolution, the use of mediation has been promoted through stipulating its use in most dispute resolution clauses in standard forms of construction contracts. As such, the attempt of mediation is the condition precedent before a construction dispute can be referred to other adjudicatory forms of resolution such as arbitration. Similar arrangements have also been affected for cases reaching the construction court in Hong Kong. Effectively, the use of construction mediation is quasi-imposed. Moreover, it is noted that contracting parties are not on equal footing. The power asymmetry between them can arise due to their differentials in resources, information, and expectation. This study raised two incompatible conditions that may negate the utility of voluntary construction dispute mediation: quasi-imposition and power asymmetry. Through the study of eleven mediation cases, the projected negative impact of quasi-imposition and power asymmetry on voluntary participation was found to be insignificant. The flexible approach of mediation is found to be the most critical advantage in attracting potential users. There is no serious concern about quasi-imposition as long as the flexibility in managing the mediation proceeding is maintained. For asymmetric conditions, it is suggested that the expectations of parties deserve special attention. In this regard, mediators' skills and expert knowledge would prove instrumental in narrowing the expectation gap. (c) 2023 American Society of Civil Engineers. Practical Applications: The use of mediation before arbitration is now the mainstream design of construction dispute resolution clause in construction contracts. Voluntary participation underpins the use of mediation to resolve construction disputes. This study revisits the voluntary participation design in view of two potential incompatible conditions against its use: quasi-imposition and power asymmetry. Quasi-imposition entails stipulating mediation in the contract or encouraging it through court directives. While not mandatory, it becomes necessary if arbitration/litigation is considered. This runs against the spirit of voluntary participation. The second incompatible condition concerns the power asymmetry between parties, which can hinder mediation due to disparities in resource, information, and expectation. Through insights from experienced mediators and observations from real cases, it is concluded that both incompatible conditions can be counteracted by the flexible procedures of mediation. Voluntary participation signifies that disputing parties can discontinue mediation at any time they want. The mediators also opined that quasi-imposition is useful to encourage attempt of mediation. Power asymmetry does exist yet poses no major barrier because the parties are free to decide how the mediation is to be conducted. The findings of the study affirm the practical value of voluntary participation in construction dispute mediation.
