Civil Engineering July 2021 | Vol 29 No 6

12 July 2021 Civil Engineering Ami cable Se t tlement I n the construction industry, the contract between the employer and the contractor should set out a tiered (stepped, layered or staggered) dispute resolution process which should be clearly defined but not overly structured. Part of the process should also be an amicable settlement procedure. The different techniques of this procedure might bring the parties together, instead of driving them further apart. While the same type of material is used for both, bridges should be built instead of fences. WHY IS THERE A PROCESS TO DEAL WITH CONSTRUCTION DISPUTES? Infrastructure is a requirement for sustainable development and to improve quality of life. Part of the development is the contract between the employer and the contractor. Construction contracts are sometimes overly complex and/or contain ambiguities and contradictions, which can lead to different types of factual and legal disputes. The courts in England, for example, asserted that “building contracts are pregnant with disputes”, although in practice “some employers are more reasonable than others when dealing with disputes”. 1 A contractor invariably extends credit to the employer by performing services or providing goods in advance of payment. Cash is needed by the contractor as it is the lifeblood of the construction industry. This results in the contractor almost invariably being in a weaker bargaining and financial position than the employer. Disputes in the construction industry are often protracted, complex and ex- pensive to resolve. They may also cause long-term damage to the commercial relationships between different role players. In the event of a dispute arising, the parties need to clear the hurdle as quickly as possible and get back to the business at hand. Work on a construction site should not stop while the parties look for ways to tackle the problem. Furthermore, the employer’s agent should not be tasked with making a final ruling before the matter is referred to arbitration or court litigation. These days, contracts and contractual disputes in the construction industry are more complex than they were in the past. Alternative approaches are therefore needed to arrive at optimal solutions. To this end, a dispute resolution process (a course of action comprising different stages) should be followed that is trans- parent, fair, robust, flexible, fast, logical, relatively cheap, and pre-determined. It should also make use of techniques within the existing legal framework that are impartial and capable of with- standing potentially heated exchanges between the parties. Importantly, the parties’ attention should not be deflected away from the primary objective, which is to complete the work on time, within budget and to the required standard. Not only should the dispute resolution process take place in real time, but it should be driven by the parties themselves. Amicable settlement is an important part of this process. THE STRUCTURE OF THE DISPUTE RESOLUTION PROCESS The development of alternative methods for resolving disputes was triggered by growing dissatisfaction with traditional dispute settlement procedures, such as arbitration and court litigation. These alternative methods allow disputes to be resolved through the adoption of tech- niques best suited to the particular con- flict or dispute and form part of so-called ‘alternative dispute resolution’ procedures (commonly known as ADR). The different procedures associated with the dispute resolution process are: Adv. Hubert Thompson Pr Eng, HonFSAICE SAICE ADR Panel thompson@icon.co.za The role of amicable settlement in resolving construction disputes Disputes in the construction industry are often protracted, complex and expensive to resolve. They may also cause long-term damage to the commercial relationships between different role players