Civil Engineering July 2021 | Vol 29 No 6

Civil Engineering July 2021 15 It is possible (provided both parties agree) that issues other than those directly related to the dispute are discussed, such as budgetary requirements, financial im- plications, available resources, the impact of other disputes, a fit-for-use project, the parties’ relationships with others, and changes required to the construction work. Mitigating measures (including the suspension or cancellation of a project) may be taken into account when attempting to resolve the dispute, which would suggest an interest-based approach. With other dispute resolution procedures, like adjudication and arbitration, only the matters relevant to the dispute are consid- ered. With amicable settlement it is also possible to involve persons not directly linked to the dispute but who have an interest therein. Therefore, with amicable settlement, the roots of the dispute may be identified and removed; with the other procedures, only the symptoms and not the root causes are addressed. Structure of the proceedings The proceedings usually start with a meeting to discuss the issue(s) that gave rise to the dispute, the way forward, and how to achieve this. Typically, each party is given the opportunity to make a short opening statement that addresses two questions: What is/are the issue(s) that need(s) to be resolved and the cause(s) thereof? What is/are the solution(s) for each of these issues? The Amicable Settlement Facilitator may also meet with each of the parties separately to discuss the dispute and explore ways to resolve the matter. If necessary, the facilitator may go back and forth a few times between the parties (the caucus approach). Any information gathered in this way may not be disclosed to any other person or be used, produced as evidence, or disclosed in later court or arbitration proceedings without the consent of the party disclosing it, unless such disclosure is required by law. A three-phase procedure is usually followed: 1. The exploration phase, when the Amicable Settlement Facilitator and the parties set out to understand the true nature and basis of the dispute. 2. The discussion phase, when possible terms for a settlement are discussed in detail with a view to break the deadlock and arrive at a win-win solution. The facilitator helps the parties reach a firm agreement after evaluating alternative options and arriving at a solution that best reflects their common interests. 3. The concluding phase, when the par- ties agree on a settlement and draft a formal settlement agreement or ‘contract’ (assisted by the facilitator). The disputing parties themselves are responsible for finding a mutually benefi- cial solution. They control the outcome. Discussions, communications, infor- mation exchanges, admissions, proposals, concessions and offers made during the course of the dispute settlement proceedings are without prejudice to the parties’ contractual and legal rights and other remedies, and will generally not be admissible, produced as evidence or disclosed in any later proceedings should the negotiations fail. Approaches to amicable settlement A facilitative (and sometimes also an evaluative) approach to amicable settle- ment should be followed. A facilitative approach is one in which the Amicable Settlement Facilitator does not give an opinion or pass judgment on the parties’ respective positions or cases, but rather tries to lead the parties towards a resolution, based on their real needs. This should be done without con- sidering or adjudicating on the parties’ rights and liabilities, strengths and weak- nesses. The facilitator’s role is to induce a settlement between the parties through facilitation and communication. An evaluative approach, in turn, is one in which the Amicable Settlement Facilitator is permitted by the disputing parties to investigate the matter by, for example, determining the rights and liabilities of the disputing parties and of- fering an opinion (which is non-binding) on the merits of the dispute or a part of it. In this way, the facilitator, who must remain unbiased, helps the parties to reach a settlement. Usually, a facilitative approach should be followed if both parties have concerns about different matters (which have given rise to the dispute), while an evaluative approach should be followed not because the parties have different concerns but because they want to know who is right and who is wrong. An evaluative amicable settlement approach should be used with caution as it is possible that the Amicable Settlement Facilitator offers an opinion (albeit unbinding) that one of the parties feels is biased in favour of the other side, leading to the former’s trust in the facilitator being eroded. Notwithstanding this possibility, an evaluative approach is a valuable settlement technique and is cheaper and quicker than adjudication. The facilitative and evaluative approaches are not, in fact, mutually exclusive. In practice, a mixed approach is usually followed, depending on the style of the facilitator and the attitudes and perceptions of the disputing parties. For example, the facilitator may lean more towards the one than the other or involve elements of both in varying degrees, depending on the trajectory that the proceedings take. These in-between approaches are known as ‘mediation’ and ‘conciliation’. Mediation and conciliation are probably the best-known settlement techniques in the construction industry. Some authors make a distinction between mediation and conciliation, while others choose to use the terms interchangeably. Although they are very similar, they still have distinct meanings. Mediation involves the neutral bringing together of the parties to a dispute and helping them to identify and discuss the issues in contention. The ‘neutral’, with the consent of the parties and applying his expert knowledge, proposes solution(s) for the parties’ consideration and acceptance. A facilita- tive approach is therefore followed to establish common ground. The neutral may give an opinion, if so requested, but he does not decide the outcome of the dispute; settlement ultimately lies with the parties. However, the neutral may as- sist them to find a solution and turn the solution into an agreement. The neutral is not a broker, but rather assists the par- ties in negotiating their own settlement. Conciliation goes further than mediation, with the neutral attempting Conciliation goes further than mediation, with the neutral attempting to bring about a settlement of the dispute between the parties