Civil Engineering April 2021 | Vol 29 No 3

64 April 2021 Civil Engineering Amicable settlement is part of the interest-based approach of the process to resolve the dispute. The interests of the parties are addressed in such a manner that they have a better understanding of their rights and obligations regarding the dispute so that they could explore many different potential solutions and understand each other’s perspective towards a win-win solution. The parties could then take the necessary decisions and actions in their best interest (as well as for the project) so that the construction works could proceed without unnecessary costs and delays, including alterations to the works, extension of time for completion, mitigating measures regarding the works, suspension, or cancellation of the works, if necessary. It could also act as a filter to prevent a dispute from escalating further to more comprehensive procedures. The outcome is usually determined with the Amicable Settlement Facilitator’s own knowledge and experience in a relatively cheap, fast, and robust manner over a short period of time, and addresses two critical issues: 1. Whether monetary relief is due to the contractor if he is entitled to that (as positive cashflow is the lifeblood of the construction industry). 2. It allows the parties to take mitigating measures if conditions, circumstances, and situations are experienced which are not favourable to the project and their interests. EVALUATIVE VERSUS FACILITATIVE AMICABLE SETTLEMENT PROCEDURE There are in essence two approaches that may be followed in amicable settlement procedures: an evaluative approach and a facilitative approach. Usually, a facilitative approach should be followed if both parties have a concern on different matters (but related to the dispute) while an evaluative approach should be followed, not because there are different concerns, but rather the parties want to know who is right and who is wrong regarding the dispute. The negative perception towards amicable settlement as an effective dispute resolution procedure arose as a result of the evaluative approaches that have been (and still are) prescribed in the dispute resolution provisions of some construction agreements, called for example mediation. Evaluative amicable settlement would usually require the Amicable Settlement Facilitator to provide an opinion on which party should be the successful party and the relief to be awarded to the successful party. Also, the concept of evaluative amicable settlement in essence contradicts the whole purpose of “amicable settlement” i.e. to create an environment and facilitate a process where the disputing parties determine the “win-win” outcome without the Amicable Settlement Facilitator expressing an opinion. Therefore, evaluative amicable settlement should be used with caution as the Amicable Settlement Facilitator provides an opinion, which one of the parties may not accept, resulting in a break down in the good will and trust with the facilitator. Notwithstanding the caution, an evaluative approach (where the Amicable Settlement Facilitator provides a non-binding opinion on the matter) is a value settlement technique or tool. It is cheaper and faster than adjudication. A facilitative amicable settlement procedure requires the Amicable Settlement Facilitator to skilfully exercise wisdom and discernment in such a way that the parties focus on the interests rather than their position (or their contractual rights). As the “mid-wife” in the process, the Amicable Settlement Facilitator will be navigating the parties to arrive at a position where the disputing parties eventually come up with the win-win solution. It is not for the Amicable Settlement Facilitator to decide what is best for the parties in terms of the outcomes sought. CONFIDENTIALITY AND ETHICAL PRACTICES The proceedings in amicable settlement are confidential in nature unless otherwise required by law. The respective parties may in private sessions with the Amicable Settlement Facilitator disclose information to the Amicable Settlement Facilitator that must remain confidential. The disclosure of such information to the Amicable Settlement Facilitator may be for the purpose of justifying a party’s bargaining position or for the purpose of requesting the Amicable Settlement Facilitator to raise certain questions to the other party. To achieve common ground, the parties must be free to make admissions and concessions which, if the amicable settlement fails, will not be used against them to their prejudice in the subsequent adjudication, arbitration, or court proceedings. GCC 2015, Clause 10.4.4, provides that no reference may be made of the outcome, evidence, submission, statement, or admission made during amicable settlement proceedings in any subsequent dispute resolution procedure. A situation may arise where the Amicable Settlement Facilitator will have to decide whether the information provided comes down to unethical practices or can be seen as “just doing good business”. It is for the Amicable Settlement Facilitator to decide at the end of the day whether such information or conduct is ethically acceptable and whether the Amicable Settlement Facilitator wants to withdraw from the proceedings, without the obligation to state any reasons to the parties. ATTRIBUTES OF A GOOD AMICABLE SETTLEMENT FACILITATOR The attributes of a good Amicable Settlement Facilitator are as follows: 1. The Amicable Settlement Facilitator does not advise or sug- gest to the parties what the solution is, unless requested to do so by the parties. 2. The Amicable Settlement Facilitator controls the process, but the outcome is controlled by the parties. 3. The Amicable Settlement Facilitator does not give legal advice. 4. The Amicable Settlement Facilitator does not apply pressure on the parties to find a solution. 5. The Amicable Settlement Facilitator has no preconceived idea on what the outcome will be. 6. The Amicable Settlement Facilitator creates an atmosphere that invites solutions rather than demands. 7. The Amicable Settlement Facilitator has good listening and questioning skills, instead of taking good written notes. 8. The Amicable Settlement Facilitator assists the parties to understand their individual and common interests. 9. The Amicable Settlement Facilitator gains the parties’ trust.