Civil Engineering August 2021 | Vol 29 No 7

Ad 40 August 2021 Civil Engineering Letters to the editor These courses are face-to-face out of necessity, and all social- distancing protocols will be observed. Candidates will undergo a practical assessment and will also write a multiple-choice exam. Further dates will be arranged if necessary. All existing Amicable Settlement Facilitators on the President’s List are required to successfully attend this course if they wish for their listing to be renewed in 2022. To assist them in this regard, this course is presented at a discount and is also accredited with 1 ECSA CPD point. The course fee is R4 000 (excluding VAT), however, a 75% discount is applicable for existing listees who attend the course in 2021 (i.e. at a cost of R1 000 excluding VAT). GENERAL COMMENTS Q Q The ADR Panel is promoting SAICE’s ADR services – in particular, amicable settlement –through magazine articles, social media and participation in webinars. In addition, SANRAL and the CIDB have been approached to promote the President’s List for the various categories. Q Q The SAICE Guidelines for Amicable Settlement have been revised and published on the website, together with a Code of Conduct and pro-forma Agreement for Facilitators. The Contractual Affairs Subcommittee has produced guidelines on Covid-19 delay claims as they relate to GCC 2015. Q Q The ADR Panel is in discussions to publish online articles on topics of interest to ADR Practitioners through the SAICE bookstore. Q Q By the end of July 2021, 40 requests for the nomination of ADR Practitioners (for all three categories) had been received. For more information Bryan Westcott Pr Eng Chairman: SAICE ADR Panel bjw@icon.co.za www.saice.org.za/saice-mediation-arbitration-adjudication LETTER FROM KEVIN SPENCE I read the article in the latest SAICE magazine by Hubert Thompson with great interest as I am a dispute resolution practitioner on all four of the contracts prescribed by the CIDB for infrastructural work in South Africa. Regretfully, the learned author failed to make mention of the very strong stance FIDIC takes on amicable settlement when resolving disputes. The Dispute Adjudication Board (DAB) in the 1999 Construction Contract is encouraged to offer non-binding opin- ions in an attempt to avoid disputes. This has been amplified in the 2017 second editions where the DAB is now a DAAB (Dispute Avoidance/Adjudication Board). The role of the DAAB is very clear in that it should use its best endeavours to assist the parties to avoid disputes in the first instance. All DAABs are now prescribed as “Standing DAABs” in order that the DAAB becomes part of the project team at the outset of the contract and is always available to facilitate dispute avoidance by amicable settlement. Kevin Spence (Pr Eng) is a FIDIC ac- credited trainer and an admitted adju- dicator on the FIDIC President’s List of Adjudicators – kevin@kbspence.co.za . RESPONSE TO KEVIN SPENCE BY HUBERT THOMPSON I agree with Kevin’s viewpoint regarding the role DAABs play in dispute manage- ment. However, the article deals with resolving disputes and not the avoidance of issues that may escalate into disputes. Smaller projects do not have the luxury of having DAABs. That is when amicable settlement, as per the article, could play a role. The GCC has a similar approach with the standing adjudication board. See for example rule 5.3.1 of the adjudication board rules: “the Adjudication Board shall informally assist the Parties to resolve differences between them by discussions and expression of views regarding such differences.” Also see rule 5.3.2: “If the Parties so agree, they may jointly refer any matter to the Adjudication Board for its opinion. Neither the Contractor nor the Employer shall consult the Adjudication Board on any matter without the agreement of the other party.” Further, clause 10.4.1 of GCC deals also with the avoidance issue, namely a claim before it can become a dispute: “The par- ties may at any time, without prejudice to any other proceedings, agree to settle any claim [which is not a dispute yet] amicably with the help of an impartial third party. Amicable settlement may include any set- tlement technique as agreed by the parties.” Hubert Thompson (Pr Eng, Hon. FSAICE) is admitted as an Amicable Settlement Facilitator, Adjudicator and Arbitrator on the SAICE President’s List – thompson@icon.co.za .  The following letters were received in response to the article titled ‘The role of amicable settlement in resolving construction disputes’, authored by Hubert Thompson, which appeared in the July 2021 issue of Civil Engineering (Vol.29, No.6). They are published here to create conversation and promote amicable settlement in line with the SAICE ADR Panel’s initiatives.