Civil Engineering July 2021 | Vol 29 No 6

14 July 2021 Civil Engineering as the case may be, and if no settle- ment can be reached, arbitration or court litigation would follow. Q Q Under the Federation Internationale des Ingenieurs-Conseils Conditions of Contracts (FIDIC), the dispute should first be referred to adjudication, and if one of the parties is not satisfied with the outcome, it should then be referred to amicable settlement. If no settlement can be reached, the dispute should then be referred to arbitration. The process can be summarised as follows: Q Q As far as the agreed/acceptable construction industry process is concerned, an ‘opt-for’ procedure (adjudication), then ‘fall-back’ pro- cedure if the opted-for procedure is not successful (amicable settlement) and then an ‘if all else fails and final’ procedure (arbitration). (See the provisions of FIDIC) Q Q As far as what an ideal construc- tion industry process should be, an interest-based approach should be fol- lowed, consisting of ‘amicable discus- sion and settlement’, ‘adjudication’ and ‘accept and/or reject discussion’, and if not successful, then a rights-based ap- proach of ‘arbitration/court litigation’. (Based on the provisions of GCC) THE AMICABLE SETTLEMENT PROCEDURE Principles Amicable settlement is conducted in a confidential, private and informal manner. It is usually a reasonably low- cost procedure with minimal paperwork. It can be set up quickly and usually has a high success rate, depending on the pre- cise nature of the dispute and the skills of the Amicable Settlement Facilitator. It allows imaginative solutions that are not possible in other procedures, such as court litigation, arbitration and adjudication. The amicable settlement procedure is designed to bring the parties together and give them the opportunity to find common ground and settle their differ- ences in a neutral environment. It allows the parties to hear the strengths and weaknesses of their case, and uncovers the real issues so that the parties can concentrate on these rather than on their own perceived differences, which are often incorrect. The different amicable settlement techniques are designed to help the parties pinpoint the disputed issues, consider alternative dispute reso- lution options, and reach a consensual settlement that accommodates their respective needs. The success of amicable settlement is dependent on an appropriate technique and suitable Amicable Settlement Facilitator supported by the necessary discipline of the parties. An Amicable Settlement Facilitator must always be (and be seen by the parties to be) neutral and independent of the parties, with no interest in the outcome of the dispute. His role is to assist the parties to settle the dispute by agreement. The use of Amicable Settlement Facilitators and other interventions, or a combination thereof, such as caucusing, consulting records and experts, or visiting construc- tion sites, increases the chances of a successful outcome. Practice has shown that the more techniques are used, the more likely it is that a settlement will be reached. A successful settlement ultimately lies with the disputing parties. They, and they alone, must decide whether to settle and on what terms. Thereafter, they must ‘own’ the settlement. If a settlement is reached, it should bring the dispute to an end, thereby disposing of the matter in dispute. This invariably involves both parties making certain concessions. The settlement should include the rights, obligations and responsibilities of each of the parties regarding the matter in dispute and the fact that they will waive any further rights regarding the dispute. This should be captured in an agreement that ends the dispute and creates new rights, obligations and responsibilities for each of the parties. If the settlement has not been recorded in an agreement, it is not binding or enforceable. The Amicable Settlement Facilitator does not have the power to impose the settlement on the parties; nor does he issue orders, find fault or make determinations. Instead, he assists the parties to arrive at their own settlement by facilitating communication, obtaining relevant information and formulating options. The facilitator needs to gain the trust of the disputing parties from the outset so that they will openly share their thoughts and views with him. If he does not, or if he loses trust during the pro- cess, it could be more difficult to achieve the optimal settlement. The initial part of the proceedings is usually facilitative in nature where the Amicable Settlement Facilitator tries to break the deadlock between the parties. This is done by identifying the causes of the problem and evaluating ways to overcome it. The facilitator is responsible for administering the proceedings in an expeditious and cost-effective manner. He may have the discretion to conduct the proceedings in the manner that he sees fit. The parties, however, should retain control of the settlement process, remaining flexible in their ap- proach while looking to preserve their ongoing relationship. After he has considered the strengths and weaknesses of each party’s case, the facilitator has the task of persuading the disputing parties to consider and agree to various concessions in order to reach a settlement. He, one of the parties, or even an outsider may propose the concessions. The final settlement will be synthesised from acceptable proposals put forward by each party. The outcome of the facilitation is therefore dependent on the disputing parties reaching agree- ment. The procedure should encourage the parties to focus on a settlement and consider the future rather than re- examine the past. More attention should be given to what went wrong and how things should be rectified than on why it went wrong and who should be blamed. The past should only be examined if necessary, so that the parties are free to look ahead. Amicable settlement is conducted in a confidential, private and informal manner. It is usually a reasonably low-cost procedure with minimal paperwork The amicable settlement procedure is designed to bring the parties together and give them the opportunity to find common ground and settle their differences in a neutral environment