Civil Engineering July 2021 | Vol 29 No 6

18 July 2021 Civil Engineering T he amicable settlement procedure often fails in practice as it is regarded and applied by some people as a once-off procedure aimed at resolving a dispute rather than as part of a more elongated process to resolve con- tractual differences. Moreover, there is a general hesitancy about making use of this procedure in the public sector – probably because officials would be held accountable for any wrong decisions taken, and so they are reluctant to participate. Furthermore, some Amicable Settlement Facilitators follow an inquisitorial 1 approach rather than a facilitative and evaluative approach. Owing to their personality and training, engineers, for example, generally want to find the most efficient solution to a problem. Yet in their enthusiasm they sometimes forget to listen and/or fail to spend time delving into the real problem and its root causes. One of the biggest challenges when it comes to communication is that many people do not listen to understand, but rather listen to answer. It is in this context that the Alternative Dispute Resolution (ADR) Panel of SAICE amended the training criteria for admis- sion to the SAICE President’s List 2 for (the category) Amicable Settlement Facilitators. The panel also recognises the need to train existing persons on the SAICE President’s List so that they meet the relevant criteria. 3 This will help to ensure that amicable settlement becomes an effective means to resolve construction disputes and discourages further, similar disputes from occurring in the future. The amicable settlement/mediation skills courses provided by commercial/ private training providers tend to focus more on how to arrive at commercial industry and legal profession settlements than on how to resolve construction- related disputes. For the commercial industry and legal profession, an amicable settlement procedure is much more of a once-off procedure to resolve a dispute (an alternative to litigation in court) based on a commercial settlement. The construction industry should rather adopt a process to resolve contractual differences in a stepwise manner, with amicable settlement underpinning such a process. Furthermore, the skills courses offered by private training providers generally concentrate more on bargaining than on discussion, and more on mediation (which is evaluative in nature) than on other amicable settlement tech- niques (which are facilitative in nature). Notwithstanding their particular orientation, these courses do contribute to the construction industry’s amicable settlement training. One of the criteria for admission to the SAICE President’s List is attendance at a commercial/private training provider’s amicable settlement/ mediation skills course, where an individual would be trained to use the different amicable settlement techniques. To ensure that the amicable settlement approach is discussion-led rather than bargaining-led and is a process rather than a once-off pro- cedure, the course that individuals attend should give them a better understanding of why there needs to be a process to deal with construction disputes and how the dispute resolution process should be structured. Here the role of and differences between the “facilitative” and “evaluative” ap- proaches come into play, both of which are crucial for achieving a successful amicable settlement since they allow the disputing parties to arrive at a win-win solution. A person who wants to be admitted to the SAICE President’s List for Amicable Settlement Facilitators should have suc- cessfully completed the following (among other things): Q Q The prescribed course for admission to the SAICE President’s List for Adjudicators (which is an existing requirement) Q Q A five-day course dealing with amicable settlement/mediation skills 4 provided by a training provider that is accredited by the South African Dispute Settlement Accreditation Council or approved by the SAICE ADR Panel (which is an Training criteria for admission to the SAICE President’s List for Amicable Settlement Facilitators