Civil Engineering April 2021 | Vol 29 No 3

Civil Engineering April 2021 63 cONTRAC TS FOREWORD AND INTRODUCTION The standard forms of construction contracts in South Africa recognise amicable settlement techniques, adjudication, and arbitration (or alternatively litigation, for example) as formal procedures for the parties to the construction contract to have their disputes resolved. The Amicable Settlement Procedure is available to the disputing parties to resolve contractual disputes, but due to the seemingly high failure rate of this procedure, it became the proverbial lemon among the oranges. The purpose of these guidelines is to provide Amicable Settlement Facilitators with a step-by-step guide to sidestep the pitfalls and to guide and steer the process in such a way that the disputing parties are brought together and will still be able to work together after the dispute has been settled. A construction project is usually not a once-off transaction and may inevitably require the disputing parties to still be able to work in a spirit of mutual collaboration on the project or a future project, after the current dispute has been settled. When two parties are faced with a dispute that they cannot resolve themselves, it requires that one of the parties refer the dispute in terms of the process set out in the contract. The parties may at any time agree to settle any issue regarding the dispute amicably with the help of an independent third party. The disputing parties should choose the appropriate technique to be followed, subject to certain rules, guidelines, and the code of conduct. Although these rules, guidelines and the code of conduct are usually not stated in the contract, the parties should agree on them based on best practise. To assist the parties in selecting the appropriate technique for their dispute, the following guidelines have been developed. ACKNOWLEDGEMENTS The South Africa Institution of Civil Engineering (SAICE) wishes to acknowledge the valuable contributions made by the following people who compiled, reviewed and made these guidelines possible: Q Q Theunis van Zyl – Author (member of the SAICE Alternative Dispute Resolution Panel) Q Q Hubert Thompson – Reviewer (member of the SAICE Alternative Dispute Resolution Panel) Q Q Jeff Pipe – Reviewer (member of the SAICE Alternative Dispute Resolution Panel) Q Q Bryan Westcott – Reviewer (member of the SAICE Alternative Dispute Resolution Panel) Q Q Willie Claassen – (member of the SAICE PMCD Panel) WHAT IS AMICABLE SETTLEMENT? Amicable settlement is a procedure in which an independent third party (as a neutral person), in strict confidentiality, con- ducts a process to facilitate the parties in reaching a settlement on an existing dispute. The role of the independent third party is to remain independent, to stay at “arms-length”, and not to attempt to achieve the best outcome for the one party over the other. The parties should own the dispute and the settlement of it where, on the other hand, in adjudication and arbitration (or litigation) the disputing parties become the spectators and usually must surrender the steering wheel to their legal advisors. Amicable settlement is also a consensual process and there must be a willingness and a mandate by the participants to arrive at an amicable settlement outcome. The parties remain free to withdraw from the amicable settlement procedure at any time and to revert to adjudication, arbitration or litigation, depending on the specific provisions of the construction contract. Guidelines for Amicable Settlement Procedures SAICE’s Alternative Dispute Resolution (ADR) Panel has issued Guidelines for Amicable Settlement Procedures (First Edition, 2021) providing Amicable Settlement Facilitators with a step-by-step guide to amicable settlement procedures. The document incorporates the notes contained in the Management Guidelines to the General Conditions of Contract for Construction Works, Third Edition, 2015 (GCC 2015). Previous guidelines referred only to mediation which is now considered to be only one of the amicable settlement techniques available to facilitators. The SAICE website also contains an Amicable Settlement Facilitators Code of Conduct and a Form of Agreement for Amicable Settlement. The ADR Panel is promoting this form of dispute resolution as a quick and cost-effective alternative to adjudication and arbitration, which have become overly complicated and legally intricate over the past few years.