Civil Engineering August 2021 | Vol 29 No 7

38 August 2021 Civil Engineering D i spute resolut i on T he SAICE ADR Panel maintains a list of ADR practitioners in three separate categories: Arbitrators, Adjudicators and Amicable Settlement Facilitators. The list is published on the SAICE website under the “Services” tab. The criteria for individuals wishing to be included on the list are available on the website, together with the relevant application form and the annual renewal form. The list is also available to the general public, including contractors and clients (such as developers and infrastructure providers) and employer’s agents. OBJECTIVE The various versions of the General Conditions of Contract (GCC) that are widely used in the construction industry in South Africa allow for the parties to a dispute to approach the SAICE President with a request to nominate a person to assist in the resolution of the dispute if the parties cannot agree on who should play this role. GCC 2015 Clause 10.9 is an example. Other standard forms of contract, and even bespoke contracts, allow for similar requests to be made. The purpose of this memorandum is to describe the proce- dure followed by the SAICE President in nominating an ADR Practitioner to assist in the resolution of disputes that arise be- tween parties to construction contracts. Once the parties are both satisfied with the disclosure statement submitted by the nominated ADR Practitioner relating to his or her impartiality and interest and involvement in the project concerned, the nominated practi- tioner is then appointed as the ADR Practitioner for the dispute. This procedure has been followed for several years and is aimed at ensuring maximum transparency and fairness. THE PRESIDENT’S LIST The so-called President’s List has been in existence for many years and contains a list of individuals who, on the basis of the informa- tion provided, are assessed to be competent to perform the duties of an ADR Practitioner. ADR can take the form of arbitration, adjudication or amicable settlement facilitation. The latter includes mediation, conciliation, negotiation, neutral facilitation and evalua- tion, among other processes. Most of the individuals on the list are professionals registered with the Engineering Council of South Africa (ECSA) and/or the South African Council for the Project and Construction Management Professions (SACPCMP), but some of the arbitra- tors are legal practitioners in the field of construction law. The criteria for inclusion in each of the three categories are different, but there is no restriction on the number of categories in which a person may be included. There is an annual renewal fee of R200 per category, up to a maximum of R500 for all three categories. The 2022 renewal application requires that a listee must complete a “self CPD assess- ment”, reflecting their ADR activities over the previous year, to demonstrate that they are active in the field and are keeping up to date with new developments. The revised criteria and the applica- tion forms were published on the website during August 2021. The ADR Panel, which reports to the SAICE Executive Board, has for the past few years been the committee overseeing ADR matters. The panel is also responsible for admitting new entrants to the President’s List. Specific admission criteria have been developed for assessing applicants for the list. THE NOMINATION PROCEDURE Receiving a request One of the members of the ADR Panel, acting on behalf of the SAICE President, is responsible for the nomination activity. When a dispute arises in a construction project and the par- ties are unable to agree on a specific person to assist in or to rule on the dispute, either party may approach the SAICE President and request the nomination of a suitable person. This request must be made on the appropriate application form, accompanied by payment of the application fee to SAICE. The applying party also supplies any relevant documentation. Upon receipt of the application form and confirmation of payment, the SAICE officer forwards the documentation to the ADR Panel member who then makes a recommendation to the President regarding the nomina- tion of an appropriate ADR Practitioner. Evaluation process The ADR Panel member responsible for the nomination activity studies the application and accompanying documentation to as- certain whether the requisite issues have been considered (not the merits of the case) to enable the President to nominate an ADR Practitioner. These include: Q Q Has the appropriate contract been used and/or is the process of dispute resolution correctly described in the contract data? Q Q Has a dispute been declared? Q Q Have the notices of dispute resolution been given? Q Q Have names been put forward for consideration to the other party by the party applying for the nomination? Q Q Is the appropriate ADR procedure being requested? The nature of the project and the substance of the dispute are examined to enable the ADR Panel member to approach a suit- able person to handle the dispute. Aspects of importance include: Alternative dispute resolution and the SAICE ADR Panel: review of the President’s List of ADR Practitioners The SAICE ADR Panel has revised the criteria for inclusion on the President’s List of Alternative Dispute Resolution (ADR) Practitioners. These include enhanced training requirements for persons wishing to be included in the Amicable Settlement Facilitator category to keep up to date with the latest industry developments.