Civil Engineering April 2021 | Vol 29 No 3

66 April 2021 Civil Engineering employed, which can vary from informally com- municating separately with each party. 3. Communication Separate meetings between the Amicable Settlement Facilitator and a party are essential to reach common ground without negative emotional reactions from the other party. The Amicable Settlement Facilitator may have separate confi- dential discussions with the parties to find out what would be acceptable to them without disclosing such information to the other party. 4. Information 4.1 The information submitted, for example the submissions stating and supporting the case as required by GCC 2015, Clause 10.1.3, must be made available to both parties to ensure a fair procedure. However, information beyond this, like the relationship between the parties, proposed concessions and other sensitive and confidential matters, carries the risk that if made available to the other party, may prejudice the proceedings. There are three types of information: 4.1.1 Information that must be disclosed to the other party. 4.1.2 Information to be kept confidential that must not be disclosed to the other party. 4.1.3 Information not in the two abovementioned categories may be disclosed at the discretion of the Amicable Settlement Facilitator. 5. Settlement agreement 5.1 The purpose of the settlement agreement is to ensure that a settlement or a partial settlement is enforceable. A written and signed settlement agreement would provide for this. If such a settlement agreement is not honoured, the failure could be referred to arbitration or court proceedings. 5.2 The Amicable Settlement Facilitator should not become the author of the settlement agreement, unless requested to do so by the parties, but should rather assist the parties in recording their settlement agreement in writing. 5.3 In the case of evaluative amicable settlement facilitation, the Amicable Settlement Facilitator’s opinion is not binding on the parties unless it is accepted by signing a settlement agreement. If the issue or part thereof remains unresolved after delivery of the Amicable Settlement Facilitator’s opinion, the compulsory dispute resolving procedures will prevail. 6. Role of the Amicable Settlement Facilitator in subsequent proceedings 6.1 The possibility of an Amicable Settlement Facilitator, to whom all the confidential information was divulged during the proceedings of amicable settlement, being called as a witness in subsequent dispute resolution procedures, will discourage parties from divulging information. This will reduce the efficacy of amicable settlement. Similarly, with such confidential knowledge, the Amicable Settlement Facilitator would not be able to act fairly as an adjudicator, arbitrator, or representa- tive of a party in subsequent formal dispute resolution procedures. To ensure open and sincere discussions in amicable settlement, the Amicable Settlement Facilitator may not be involved in subsequent dispute resolution proceedings in any way. 7. Liability of the Amicable Settlement Facilitator The Amicable Settlement Facilitator cannot be held respon- sible for damage and loss caused by his acts or omissions unless he acted in bad faith, meaning an intentional dishonest act, for example, accepting a bribe to influence his opinion. 8. Fees and expenses It is advisable for the Amicable Settlement Facilitator to state his scale of fees and possible expenses that he will claim in his acceptance letter. The parties must agree on this fee, as well as on the procedure for payment of the Amicable Settlement Facilitator’s fees and expenses during the preliminary meeting. AMICABLE SETTLEMENT PROCEDURES: GCC 2015 1. Scope of the procedures 1.1 These procedures apply to the amicable settlement of an issue between the contractor and the employer as set out in Clause 10.4 of the GCC 2015. 1.2 Amicable settlement refers to the procedure by which issues are settled with the help of a sole independent and impartial third party, called an Amicable Settlement Facilitator, using a facilitative or evaluative approach (or any technique agreed between the parties). 1.3 The parties may agree to modify any of the provisions of these procedures at any time. 2. Commencement of amicable settlement proceedings 2.1 The party who wishes to initiate an amicable settlement shall extend a written invitation to the other party to settle the issue amicably under these procedures, stating briefly: 2.1.1 The nature of the issue 2.1.2 A proposed amicable settlement technique 2.1.3 Details of the proposed Amicable Settlement Facilitator to be appointed in terms of GCC 2015, Clause 10.9.1. 2.2 The parties shall discuss and seek to reach agreement on the amicable settlement technique to be used and the Amicable Settlement Facilitator to be appointed. 2.3 Amicable settlement proceedings shall commence once the other party accepts the invitation. Acceptance shall be confirmed, in writing, stating the amicable settlement technique decided on and the Amicable Settlement Facilitator to be appointed. 2.4 Amicable settlement failure shall be dealt with in accord- ance with GCC 2015, Clause 10.4.2. 3. Amicable settlement procedures 3.1 Each party shall always act in good faith.