Civil Engineering April 2021 | Vol 29 No 3

Civil Engineering April 2021 67 3.2 Although the Amicable Settlement Facilitator has the duty to facilitate the amicable settlement proceedings while the parties stay in control of the matter, he may: 3.2.1 Conduct the procedure as he considers appropriate, subject to these procedures and guided by the principles of fairness, impartiality, and the wishes of the parties. 3.2.2 Call for a preliminary meeting with the parties to decide on the procedure and time frames to be adopted. 3.2.3 Request each party to submit to him and the other party a statement of the party’s position on the issue, supplemented by such documentation as the party may deem necessary. 3.2.4 At any stage in the proceedings, request a party to submit appropriate additional information. 3.2.5 Call further meetings to hear oral presentations, reconcile opposing views, discuss proposals, or communicate directly with the parties to achieve a mutually acceptable solution. 3.2.6 Propose various procedures about settling the issue as a whole or elements of the issue which need not be in writing or accompanied by reasons. 3.3 Each party may, at his own initiative or at the invitation of the Amicable Settlement Facilitator, submit suggestions about settling the issue. 4. Representation 4.1 The parties may be represented and/or assisted by persons of their choice. However, for legal representation, the other party should consent to that, which could be in writing. 5. Communication 5.1 The Amicable Settlement Facilitator may communicate with the parties together or separately, provided that in the case of separate communication the consent of the other party is given. 5.2 The place and time of such meetings shall be determined by the Amicable Settlement Facilitator, in consultation with the parties. 6. Information 6.1 Whenever the Amicable Settlement Facilitator receives information concerning the issue from a party, he shall disclose such information to the other party so that the other party may have the opportunity to respond ap- propriately. However, should one party give information to the Amicable Settlement Facilitator, subject to keeping it confidential, such information shall not be disclosed to the other party. 7. Settlement agreement 7.1 When the parties reach agreement on a settlement of the issue or an element of the issue, the parties shall draw up a written settlement agreement. 7.2 By signing the settlement agreement, the parties conclude the issue or element of the issue and are bound by the agreement. 8. Confidentiality 8.1 Unless the parties agree otherwise, the proceedings, evidence given, admissions, submissions and statements made and the outcome of amicable settlement shall be regarded as private and confidential and no reference shall be made to it as required by GCC 2015, Clause 10.4 4. 9. Termination of proceedings 9.1 The proceedings are terminated on the date of: 9.1.1 The signing of a settlement agreement by the parties. 9.1.2 A written statement by the Amicable Settlement Facilitator, after consultation with the parties concerned, that further efforts to settle the issue amicably are no longer justified. 9.1.3 Receipt by the Amicable Settlement Facilitator of a written and signed joint declaration by the parties that the proceedings have been terminated. 9.1.4 The Amicable Settlement Facilitator withdraws from the proceedings. 9.2 During the proceedings, the parties undertake not to initiate any adjudication, arbitration, or court proceedings in respect of the issue under consideration, except where such arbitration or court proceedings are necessary to preserve a party’s rights. 10. Role of the Amicable Settlement Facilitator in subsequent proceedings 10.1 If the issue cannot be settled amicably, the parties and the Amicable Settlement Facilitator shall undertake that the Amicable Settlement Facilitator shall not be called as a witness or act as an adjudication board member, arbi- trator, or representative of either party in any subsequent proceedings. 11. Liability of the Amicable Settlement Facilitator 11.1 The Amicable Settlement Facilitator is not liable for anything done or omitted in the discharge or purported discharge of his functions as Amicable Settlement Facilitator unless the act or omission was in bad faith. The contractor and the employer shall exempt and indemnify the Amicable Settlement Facilitator against all claims by third parties and, in this respect, shall be jointly and severally liable. 12. Fees and expenses 12.1 Each party shall bear its own costs arising from the amicable settlement procedure. 12.2 The parties shall, in equal shares, pay the Amicable Settlement Facilitator the amount of his expenses and the amount of his fee based on a scale of fees as agreed between the Amicable Settlement Facilitator and the parties before commencement of the amicable settlement procedure. For more information contact Bryan Westcott Pr Eng, FSAICE Chairman: SAICE ADR Panel Mediator and Adjudicator bjw@icon.co.za