An investigation of judicial dispute resolution in Turkish construction industry

A project contains numerous tasks coordinated with associated resources to achieve specific goals. Just like in the nature of a project depending on its density of multidisciplinary tasks, a construction project is also considered to be very sophisticated. Therefore, it is probable to encounter many challenges and risks in the projects. When the number of tasks and resources along with their interactions are considered, dispute could be inevitable in construction projects. There have been numerous researches on dispute resolution processes such as litigation. Studies reveal that litigation is a lengthy and an expensive process and may deteriorate the close relationships between the parties. Despite concerned inconveniences, project parties mostly tend to resolve their disputes through litigation in Turkey. This situation necessitates taking specific precautions in order to prevent the losses caused by litigation process. Hence, in this study, as the most preferable method of resolving disputes concerning construction in Turkey, litigation process is intended to be investigated from different aspects. Two fundamental subjects contributing to the success of litigation process are examined namely, determining the most problematic dispute sources in construction related cases by detecting their occurrence rates, and determining the qualifications and competency levels of the judicial actors taking part in litigation process. In the first phase of this research, 282 cases conducted by Courts of Cassation in Turkey between the years 2007 and 2017 are found to be relevant to construction sector and are investigated. The subjects of the cases are coded as per defined contents to detect the sources of disputes and the obtained data are analysed via SPSS software in order to set out the most problematic sources of disputes. This data is also utilized to serve the second objective of this research, which is set to detect the qualifications and competency levels of the judicial actors taking part in construction related cases in Turkey. Additionally, to serve this objective, in the second phase of this study, semi-structured interviews are conducted with the judicial actors who are judges, lawyers and expert witnesses. The interviews are analysed through content analysis. In conclusion, concerning the first objective of this research, contract contents, civil project types, contracts between employers and contractors, debits and credits related disputes are detected as the most frequent dispute sources. Contract content is detected as the most problematic source of dispute. It is believed that improving standard contract types with respect to the areas stated above would certainly reduce the number of disputes resulting from contracts by eliminating the ambiguities. Concerning the second objective of this research, reassessment decisions were made by Courts of Cassation for almost %96 of the construction related cases conducted by Courts of First Instance between 2007 and 2017. It is detected that the reassessment decisions mostly resulted from missing review and wrong assessments made by judges, and inexistence of expert witnesses in the courts. This outcome presents data concerning the qualifications and competency levels of judicial actors in construction related cases. Moreover, via the interviewees' opinions, some insufficiencies are detected concerning technical knowledge of construction of judicial actors, experiences of the judicial actors, the numbers of judges and the ethical attitudes of lawyers and expert witnesses. Finally, some suggestions are made on how to improve the litigation process in resolving disputes related to construction.