Civil Engineering April 2021 | Vol 29 No 3

Civil Engineering April 2021 65 THE AMICABLE SETTLEMENT FACILITATOR’S CHECKLIST FOR THE OPENING SESSION The following list is provided as a guideline of matters to be dealt with in the opening session: 1. Welcome and introduction – the Amicable Settlement Facilitator 2. Facilities – safety and health 3. Timeslots – commitments and restrictions 4. Signing of the Amicable Settlement Facilitator agreement 5. Authority to settle 6. Description of the Amicable Settlement Facilitator’s role 7. Setting the rules 8. Open sessions versus private sessions – the dos and don’ts 9. The role of legal advisors if present 10. Documents submitted to the Amicable Settlement Facilitator and the consideration thereof 11. Introduction of the parties – background, ambitions 12.What the parties would like to achieve out of the sessions. GUIDANCE ON AMICABLE SETTLEMENT PROCEDURES IN ACCORDANCE WITH THE GCC 2015 1. Commencement of amicable settlement procedures 1.1 The commencement procedures are a prelude to the amicable settlement procedures that require the parties to discuss and seek agreement from the outset. This makes it clear right from the start of the proceedings that the whole concept of amicable settlement depends on the will of the parties. In this instance, the agreement required between the parties is not difficult, because it is about an appropriate technique and a suitable Amicable Settlement Facilitator. The parties are also required to act with the necessary discipline within the time-barring period for accepting amicable settlement. 1.2 GCC 2015 Clause 10.4.2 provides that a party must react to an invitation for amicable settlement within 14 days of the invitation to prevent the referral of the issue to formal dispute resolution procedures. This limiting period is nec- essary to ensure that amicable settlement is not abused by delaying tactics. 1.3 In the unlikely event that the parties cannot agree on who the Amicable Settlement Facilitator should be, either party may apply to SAICE in terms of GCC 2015, Clause 10.9.1, for nomination of a suitable Amicable Settlement Facilitator from the President’s List. Should it be required, the Amicable Settlement Facilitator should submit a disclosure statement to ensure his neutrality. (See GCC 2015, Appendix 4, which should be adjusted for amicable settlement). 1.4 Amicable settlement commences when the contractor and the employer agree to engage in such proceedings. This may be at any time, even midway through arbitration. The parties may also agree at the outset of the contract to refer all future issues to amicable settlement. 2. Amicable settlement procedures 2.1 The Amicable Settlement Facilitator is given the duty, while observing the wishes of the parties, to facilitate the amicable settlement proceedings while the parties stay in control of the matter. In exercising his powers, the Amicable Settlement Facilitator may act in the belief that the parties will at all times act in good faith, meaning that they honestly intend to act without taking an unfair advantage over one another. 2.2 There are, however, some limitations to this duty, mainly to ensure that the amicable settlement procedure is con- ducted fairly. 2.2.1 The parties may agree, by referring to specific rules or otherwise, on how the amicable settlement should be conducted. If they do not do so, or fail to agree, the Amicable Settlement Facilitator may conduct the proceedings in such a manner as he considers appropriate, considering the circum- stances of the issue, to get the parties on board and to participate. 2.2.2 A preliminary meeting between the parties and the Amicable Settlement Facilitator, as chairperson, is indispensable as it reduces uncertainty at the very start of the proceedings. The minutes of the meeting will form the basis of the procedure. Having a preliminary meeting is a necessary step in getting the parties to discuss and seek agreement on matters from the outset, before the more difficult issues are embarked upon. Furthermore, it also gives parties and the Amicable Settlement Facilitator the opportunity to meet face-to-face and for the Amicable Settlement Facilitator to assume his role as master of the proceedings. 2.2.3 For amicable settlement to succeed, the parties and the Amicable Settlement Facilitator must be able to explore and understand, as clearly as possible, the nature of the issue between the parties, the background and circumstances that gave rise to the issue, the reasons why the parties were unable to reach agreement among themselves, and the possibility of the parties overcoming the issue. Depending on the complexity of the issue, various ways may be used to achieve this. It may be by oral statements of the parties on a simple issue or re- questing the parties to prepare a joint statement of issues or by allowing the claiming party to deliver a submission and allowing the other party to respond. This step will clarify misunderstandings about the issue early in the proceedings. 2.2.4 If new matters are raised in the response, new developments have taken place, or fresh informa- tion comes to light, a party may wish to alter his submission, or the Amicable Settlement Facilitator may want to see how the other party responds. If a request is genuine and not a delaying tactic, the Amicable Settlement Facilitator may allow such additional information. 2.2.5 To supplement the submissions, the Amicable Settlement Facilitator may propose to the parties to hold further meetings or to hear the parties, even separately. The procedure for hearing the parties will depend on the amicable settlement technique