ALTERNATIVE DISPUTE RESOLUTION METHODS BUILT ENVIRONMENT PPRD6802 Assignment 1

ALTERNATIVE DISPUTE
RESOLUTION METHODS
BUILT ENVIRONMENT
PPRD6802 – Assignment 1
Johan Pienaar Papenfus (2015009950)
PienaarPapenfus@Gmail.com
Abstract
Alternative Dispute Resolution (ADR) is a popular tool in the legal profession to
resolve dispute issues between parties in any form and in any industry. ADR refers to
a method and/or procedure that is used by two disputing parties to resolve a
combined issue between the two contracting parties that is in disagreement.

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Alternative Dispute Resolution Methods Built Environment
TABLE OF CONTENTS
1. INTRODUCTION ................................................................................................. 3
1.1. Contract in Legal Terms................................................................................ 4
2. ALTERNATIVE DISPUTE RESOLUTIONS (ADR) .............................................. 5
2.1. Definition ....................................................................................................... 5
2.2. When is ADR required? ................................................................................ 5
2.3. The Objective of ADR ................................................................................... 6
2.4. Advantages of ADR....................................................................................... 6
3. ARBITRATION..................................................................................................... 7
3.1. Definition ....................................................................................................... 7
3.2. The Arbitrator ................................................................................................ 7
3.3. The power of the Arbitrator............................................................................ 9
3.4. The procedure of Arbitration.......................................................................... 9
3.5. Advantages of Arbitration............................................................................ 10
3.6. Disadvantages of Arbitration ....................................................................... 10
4. ADJUDICATION ................................................................................................ 11
4.1. Definition ..................................................................................................... 11
4.2. The Adjudicator........................................................................................... 11
4.3. The power of the Adjudicator ...................................................................... 11
4.4. The procedure of Adjudication .................................................................... 12
4.5. Advantages of Adjudication......................................................................... 12
4.6. Disadvantages of Adjudication.................................................................... 12
5. MEDIATION....................................................................................................... 13
5.1. Definition ..................................................................................................... 13
5.2. The Mediator............................................................................................... 14
5.3. The power of the Mediator .......................................................................... 14

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5.4. The procedure of Mediation ........................................................................ 15
5.5. Advantages of Mediation............................................................................. 15
5.6. Disadvantages of Mediation........................................................................ 16
6. CONCILIATION ................................................................................................. 17
6.1. Definition ..................................................................................................... 17
6.2. The power of the Conciliator ....................................................................... 17
6.3. Advantages of Conciliation.......................................................................... 18
7. CONCLUSIONS & RECOMMENDATIONS....................................................... 19
7.1. Conclusion .................................................................................................. 19
7.2. Recommendations ...................................................................................... 20
8. BIBLIOGRAPHY................................................................................................ 21

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1. INTRODUCTION
Alternative Dispute Resolution (ADR) is a popular tool in the legal profession to
resolve dispute issues between parties in any form and in any industry. ADR refers
to a method and/or procedure that is used by two disputing parties to resolve a
combined issue between the two contracting parties that is in disagreement.
(Sullivan & Solomou, 2011: 1035)
According to Sullivan & Solomou (2011: 1035) there are four main forms of ADR.
These main types are listed below and will be discussed in more detail in the
relevant chapters of this paper.
 Arbitration;
 Adjudication;
 Mediation; and
 Conciliation.
According to Copple (2011: 11) Alternative Dispute Resolution Methods that is
applied primary in the early stages of a dispute that requires resolution between two
parties possibly will aid to firstly resolve and secondly to moderate lessen countless
fundamental legal, routine, and technical issues. Copple (2011:11) Further goes on
by saying that litigation process and magnitude thereof can be reduced by
implementing a detailed and organised plan of action through the means of official
ADR methods, such as Arbitration, Adjudication, Mediation and occasionally
Conciliation. By implementing the various ADR methods to resolve disputes between
two parties, a process would develop that is effective in reducing the major legal fees
and the time related with such a process. ADR Methods would aid the parties in
moving forward timeously and in a professional manner.
According to Sullivan & Solomou (2011: 1036), the framework of ADR is very
important as it ensures that legal expenses are reduced and that all issues should be
addressed and resolved in a timeously manner. ADR is thus more efficient than
litigation when referring to the above mentioned items, which is the monetary value
and time. It furthermore grants the parties with the confidence of a more pleasing
result that is more favourable than the irregularity of the litigation process.

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Within the Construction Industry if South Africa, there are numerous factors that can
lead to disputes between the two contracting parties. Time constraints, the exact
scope of work as well as additional work (unforeseen items), financial issues such as
claims and payment certificates, workmanship on site, communication between
parties and contractual discrepancies are some the factors that can cause disputes
between two parties.
With this paper, the aim is to elaborate on what is ADR and the various methods
applied with specific reference to the Construction Industry. This paper will clearly
describe the four ADR methods, which is Arbitration, Adjudication, Mediation and
Conciliation. With each method, the definition thereof would be listed together with
the advantages and disadvantages. The individual employed to act the link between
the two disputing parties will be addressed together with the powers that the
individual holds. The last item in each method that will be addressed is the
procedure of the method.
1.1. Contract in Legal Terms
According to DeLong (2015:106) a Contract is either a commitment or a set of
commitments made between two binding parties for which the law gives a remedy,
or the performance where the law can in some way distinguish a duty for either one
of the parties or both. In a broader sense, a contract can be seen as an over-all legal
commitment that results from the agreement made between the two binding parties.
Taking the above into consideration, the contractor and the client enters into a
contract to erect or complete a certain element within the building industry. This
contract will thus be known a building contract. Numerous building contracts exists,
such as the Joint Building Contracts Committee (JBCC), NEC3 Engineering and
Construction Contract (ECC), The FIDIC Conditions of Contract and the GCC
Conditions of Contract. The contractor will thus agree to execute the construction
whereas the client will agree to pay for the construction. There are various rights that
form part of contract as per the above definition. By entering the agreement
(Contract), the contractor has the duty to execute the construction process and he
thus has to legally obtain money for the works execute. On the other hand, the client
has the legal capacity to have the building constructed and the client has the duty of
compensating the contractor for his works executed.

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2. ALTERNATIVE DISPUTE RESOLUTIONS (ADR)
2.1. Definition
Alternative Dispute Resolution (ADR) is defined according to Nabatchi (2007:646) is
an umbrella that covers a varied assortment of dispute resolution methods and
procedures. These methods and procedures are used as a replacement to resolve
the traditional legal and administrative disputes between two binding parties.
Litigation can be seen as one of the traditional legal and administrative dispute
resolution methods. Alternative Dispute Resolution methods are not forced as a legal
element onto parties. ADR methods uses an outside unbiased entity to facilitate the
process.
2.2. When is ADR required?
ADR is an informal discussion between an outside unbiased third party and the two
binding parties. The informal discussion is aimed at problem solving solutions.
Mediation is the one ADR method that stands out the most. If the parties opt to use
the mediation process, they are not bound to accept the mediator’s result and/or
opinion and can take the next step which is to approach Arbitration or Litigation
(Nabatchi, 2007:646).
If any sort of disagreement arises through the mediation process between the
contractor and the client, the unbiased third party who acts as invigilator will
determine a decision based on the findings in writing. If the two binding parties have
requested the decision in writing, the written decision is delivered to both parties
within 14 working days of the delivery date. If disputes on elements of the decision
by either of the binding parties are made, the written decision by the unbiased third
party (Mediator) will not be final and binding. The disagreement then between the
two binding parties will thus be classified as a dispute. If the unbiased third party
(Mediator) fails his goal in not delivering a written decision, the binding parties can
combinable declare the disagreement a dispute and the rest of the ADR techniques
will follow. (Lesser & Bacon, 2008:146)

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After the informal resolution methods has been applied, the formal dispute
resolutions methods, such as arbitration and litigation takes place. When the
disagreement between the two binding parties is referred to the unbiased third party
(Mediator) in writing, the formal resolutions methods takes place. (Lesser & Bacon,
2008:147)
2.3. The Objective of ADR
There are basically four main objectives of ADR, which are listed below:
 ADR provides control through the dispute process;
 ADR aims to reach consensus through the dispute process;
 ADR provides continuity through the dispute process; and
 ADR grants confidentiality through the dispute process;
2.4. Advantages of ADR
ADR methods aides to resolve disputes between two parties. If the correct ADR
Method is applied, a process would develop that is effective in reducing the major
legal fees and the time related with such a process. ADR Methods would aid the
parties in moving forward timeously and in a professional manner. (Copple, 2011:11)
According to Verster (2011:20), other Advantages of ADR includes the following:
 The ADR Process brings parties together to communicate;
 Reconciliation, the deed of making one opinion or understanding well-suited
with another, takes place between the parties;
 Professional Communication arises between parties;
 An agreement is more than likely to place between parties; and
 There is major cost saving for both of the parties.

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3. ARBITRATION
3.1. Definition
According to Verster (2011:2), arbitration refers to the process that evades the Court
of Law. Arbitration is the process whereby two parties that are in disagreement and
in dispute seek a solution through an unbiased third party that they agree to appoint.
The solution that the disagreeing parties seek, should be in line with the law.
Arbitration is progressively more becoming the standard that acts as a significant
technique of resolving disputes. Arbitration needs to be sustained by the applicable
legislation. (Lesser & Bacon, 2008:147)
3.2. The Arbitrator
The arbitrator is the one person and/or individual that is the unbiased third party to
whom a dispute is referred to and it is the arbitrator that makes the decision
throughout the dispute process. In various instances, depending on the
disagreement between the parties, it can happen than more than one arbitrator is
appointed. The selection of an arbitrator is completely contained by the preference of
the binding parties assigning the individual. The selection of an arbitrator does not
necessitate the arbitrator to have any prerequisites and/or requirements. Where
there are more than one arbitrator appointed, the arbitrators must make decisions
together. If the decision and/or votes of the different arbitrators are not in line with
one and another, a referee can be appointed to settle the dispute and make the final
decision. A referee can only settle the dispute and make the final decision on the
dispute between the parties itself and not the dispute between the arbitrators.
(Verster, 2011:2)
According to the Arbitration Act (Act 42 of 1965), and individual both female and
male can be appointed as an arbitrator, however the person acting as the arbitrator
must be over the age of 18 years old.

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The arbitrator, who can be any individual as per the Arbitration Act above is usually
nominated by either of the binding parties at the signing of the agreement. However,
the arbitrator must be accepted by the other party. The arbitrator is very often
selected from the professional team based on the building contract due the
experience the individual might have. The circumstances of the dispute furthermore
plays a big role in who gets appointed as the arbitrator. If the dispute is more
concerned with legal matters and legalities, one would opt to appoint an arbitrator
with legal qualifications and experience. If for instance the dispute is based on
physical construction technicalities, one would opt to appoint a professional within
than industry and/or field of study. (Verster, 2011:3)
From a legal point of view, in order to correctly appoint an arbitrator that would be
binding to a dispute, the arbitrator firstly needs to be notified of his appointment in
writing. Secondly, the arbitrator must have been agreed upon by the both of the
parties. Thirdly, the arbitrator must grant his consent to act as the arbitrator. Lastly,
the arbitrator must be and independent individual and/or company and he must be
unbiased third party.
According to Verster (2011:7) the arbitrator will conduct a full legal analysis through
which his findings will be made clear in order reach his decision. Through the
process of arbitration and the legal analysis, the arbitrator has certain functions that
he has to fulfil. These function are among the following.
 The arbitrator will in writing notify the two binding parties of the location where
the proceedings of the arbitration process will take place together with the
date and time thereof.
 The arbitrator must ensure and grant both of the parties’ access to location
where the proceedings of the arbitration process will take place.
 The arbitrator must ensure that both of the parties are allowed to address their
views and opinions and to state their case.
 Bystanders, documentations and/or other information that might be requested
by the parties must be allowed for by the arbitrator.

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3.3. The power of the Arbitrator
The arbitrator has numerous powers that is given to him the two binding parties that
appoints him. Various powers of the arbitrator is listed below according to Verster
(2011:7):
 To determine the place and time of proceedings;
 To take an oath or have it taken
 To question witnesses and examine evidence
 To receive affidavits
 To investigate goods and documents
 Request a party to submit documents
 Request a party to submit claims, pleas, testimony and defence
 Expect a party to allow an inspection of property and documents
 Appoint a commissioner for the giving and hearing of evidence
3.4. The procedure of Arbitration
The arbitration process according to JBCC (2014:30) is set in place based on the
final decision that is given by the adjudicator. If there is no reward at the adjudication
process, the adjudication process is overturned by the arbitration process.
All arbitration processes starts off with a written agreement from both the binding
parties. The two binding parties that are in disagreement submit their given dispute
to the arbitrator who will then, after being formally appointed, start with the procedure
of arbitration. (Rechtsstandort Hamburg, 2009: Online)
According to Rechtsstandort Hamburg (2009: Online), freedom and flexibility is
provided to the two binding parties through the arbitration process. The arbitrator will
proceed by formally issuing the binding parties in dispute with the place and time of
proceedings. The structure will also be discussed and provided to the parties.

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3.5. Advantages of Arbitration
When comparing the procedure of Arbitration to a proceeding that might take place
in court with legal procedures, etc., Arbitration holds a few advantages that is among
the following:
 According to Verster (2011:4) there are advantages in terms of the arbitrator
that is appointed when there are physical and/or technical difficulties within
the dispute. The parties can then choose to appoint an arbitrator that
possesses the necessary knowledge and qualifications.
 Arbitration is a quicker and more efficient process than a legal court case. (e.g
Litigation);
 Due to time constraints imposed on the arbitration process, cost are
dramatically reduced.
 The arbitration process can be dealt with a means of privacy so if required,
there can be no publicity on the matter.
 Both the parties together with the arbitrator has the convenience to set the
date, time and place according to everyone’s liking.
3.6. Disadvantages of Arbitration
According to Verster (2011:4) In the arbitration process, disadvantages to arise.
Some disadvantages of arbitration is listed below:
 Differences and difficulties can arise when the arbitrator that is appointed
does not upload the legal knowledge to comprehend certain remarks and or
sections of a legal document.
 The final decision of the arbitrator is good and binding. Neither of the parties
can appeal against the final decision of the arbitrator. However, the parties
can apply to have the decision set aside for good reason, but this goes
through the Supreme Court that might incur a long duration as well as
expensive and unwanted costs.

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4. ADJUDICATION
4.1. Definition
Adjudication, together with Mediation and conciliation, is a technique for settling
conflict. This technique that forms part of ADR has the advantage of bypassing
prolonged and costly court measures. Compared to Arbitration, Adjudication is the
fast-tracked procedure of conflict resolution between two binding parties. The fast-
tracked procedure involves an unbiased third party that is an independent consultant
and is classified as an expert and not an arbitrator. The expert’s decision is final and
binding, except the decision is invalid or upturned by an arbitration award. When it
comes to the Joint Building Contracts Committee (JBCC), the adjudicator’s
determination of the dispute is final and binding. Both of the parties are then thus
bound to this decision and must be implemented by them. (JBCC, 2014:29)
Adjudication forms part of the JBCC under Clause 30.6. Is has been implemented by
the JBCC to speed up the dispute resolution process. The objective of adjudication is
to attain a prompt resolution in terms of a dispute. This resolution is constructed on a
judgement made in a collective manner between the two binding parties.
4.2. The Adjudicator
According to the JBCC (2014:29) the provision states that the adjudicator shall be
appointed by both of the parties and shall be done immediately after the
disagreement has been referred to Adjudication. The adjudicator can’t acts as an
arbitrator and cannot be entitled for successive appointment to the arbitrator. The
decision made by the adjudicator shall be binding and both of the parties are to
implement the decision immediately. The binding parties have 10 working days to
appeal to the decision made by the adjudicator. If an appeal has been made within
the 10 working days, the dispute will be referred to arbitration.
4.3. The power of the Adjudicator
The adjudicator consists of some powers that have been given to him by the
appointment to the dispute. The adjudicator holds the power to refrain from issuing
his decision and/or verdict until he has been remunerated in full as per the
agreement. He, must however, notify both of the parties of such action.

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4.4. The procedure of Adjudication
The adjudication process is set in place if there is disagreement between the client
and contractor. If the agreement stated previously is not settled within 10 working
days, the dispute shall be referred to the adjudication process within 10 working
days. The notice of the dispute together with the adjudication process shall visibly
outline the scope and the desired solution of the dispute. The adjudicator together
with the binding parties in dispute shall informally meet to submit the details of the
dispute to respond in writing. Hearing and meeting will be conducted to execute the
latter. The adjudicator shall then make his determination based on the findings of the
meetings and hearings and provide feedback to the binding parties in terms of
decision. Both parties have 10 working days to give notice of dissatisfaction with
regards to the decision of the adjudicator.
4.5. Advantages of Adjudication
Adjudication has the following advantages (Ellison, 2014: Online):
 The two binding parties that are in dispute can appoint the expert that can act
as the adjudicator;
 Due to the Fast-Tracked process and quick turnaround time, there is rapid
reduction in costs related to the procedure;
 There are infrequently prolonged oral opinions or legalities;
 Informal hearings and meetings are arranged; and
 Adjudication can be set in place for any dispute and during any stage of the
construction period.
4.6. Disadvantages of Adjudication
Adjudication has the following disadvantages (Ellison, 2014: Online):
 The expert appointed as the adjudicator can’t surpass the authority and rules
that is detailed in the JBCC Contract or the contract used for the project;
 The adjudicator’s final decision is not reinforced by legal regulations and/or
terms;
 The adjudicator’s powers are limited in the process; and
 There are restricted prospects where the parties can appeal the decision
made by the adjudicator.

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5. MEDIATION
5.1. Definition
Mediation that forms part of the ADR methods, is an informal procedure to resolve
disputes. Even though it is informal, it is still a structured procedure to resolve
disputes. A mediator is appointed in the mediation process to assist and support the
binding parties in a desired settlement for their dispute. An informal discussion
and/or argument would take place between the disputing parties if a mediator was
not appointed and present during the negotiations. (Van der Merwe, 2009:18)
Mediation provides a few main characteristics which is that is a voluntary, non-
binding and confidential ADR method. The mediation process can be cancelled by
any of the parties after the first informal meeting. The mediator does not issue and
final decision that is binding on the parties. The mediation process furthermore
issues the parties with the ease that there will be no consequences after the
mediation process. (Rechtsstandort Hamburg, 2009: Online)
The main difference with mediation compared to adjudication and arbitration is that
the mediator’s main purpose is to act as a gateway for the two parties to
communicate. The two binding parties thus manages to hear terms and ideas that
they have not yet heard before. The parties can disclose and exchange information
in an orderly fashion. With the mediator acting as the gateway, the parties might
come to new ideas and solve the dispute with the desired outcome that is brought
forth by themselves. (Van der Merwe, 2009:18)

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5.2. The Mediator
According to Van der Merwe (2009:18), a negotiated agreement and/or result is the
terminology that springs to mind when explaining the mediator’s role. The mediator is
different from the arbitrator in the sense that the mediator does not make decision.
The mediator merely assist in the discussion and/or verbal communication part of the
process. Two different types of mediation is available, namely:
 Facilitative Mediation; and
 Evaluative Mediation.
Facilitative Mediation is where the mediator merely acts as the gateway through
which the parties communicate. The mediator helps and assists in providing proper
and professional communication channels. The mediator thus does not provide a
decision on the dispute. (Van der Merwe, 2009:18)
Evaluative Mediation is the same procedure as facilitative mediation. The difference
between the two mediation methods comes in where the mediator makes a non-
binding decision or determination on the dispute in the evaluative mediation method.
(Van der Merwe, 2009:18)
5.3. The power of the Mediator
The mediator merely acts as the gateway through which the parties communicate.
The mediator helps and assists in providing proper and professional communication
channels. The mediator thus does not provide a decision on the dispute and
therefore cannot enforce any potential outcome.
The mediator has among many the following powers and duties:
 No advice, recommendations and/or information shall be provided by the
mediator. The mediator shall only assist the parties by helping them
communicate to reach the desired outcome.
 The mediator has the opportunity to conduct the mediation process in the
manner, place and fashion that he prefers.
 The responsibility of the entire process lies with the mediator. The mediator
can thus more or less determine the period in which the dispute will be
settled.

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5.4. The procedure of Mediation
Like with Arbitration and adjudication, there no formal rules in place for a mediation
procedure. Due the informality of a mediation process, the outcome thereof is
determined mostly by the atmosphere in the room and the frame of mind of the
parties. The mediator is appointed to smoothen the process in order to reach the
desired outcome for both parties.
It is crucial to note that Van der Merwe (2009:20) advised that the numerous
guidelines that are in place mediation has no rank or order. The guidelines can
intertwine and mix, however they will more than likely reach the end result that
everyone desired.
As per the guidelines stipulated in Van der Merwe (2009:20), the various phases for
mediation is as follows:
I. The mediator states the introductory remarks;
II. Both parties clearly states their problems and/or disputes;
III. All the combined parties gather information on what has been provided;
IV. The mediator and both of the parties identifies the problem (Dispute);
V. All of the parties combine to create the solution for the dispute; and
VI. A written agreement is drawn up between the two parties.
5.5. Advantages of Mediation
Ellison (2014: Online) states that there are several advantages to mediation, namely:
 Mediation is amongst the ADR Methods, probably the most Informal process
of dispute resolution;
 Mediation can be set in place for any dispute and during any stage of the
construction period;
 It allows for relationships to be conserved for the duration of and after the
mediation process; and
 Both of the parties can reach a consensus by incorporating the flexibility and
informality of the mediation process.

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5.6. Disadvantages of Mediation
Ellison (2014: Online) states that there are several disadvantages to mediation,
namely:
 If the mediation process is of no avail, there is no consensus and thus no
progress with the dispute;
 The mediator consists of no authority to demand the parties to issue
information and/or to take action of some sort or vice versa; and
 During the mediation process, the parties can give away important
information.

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6. CONCILIATION
6.1. Definition
Conciliation is similar to mediation. Conciliation is like all the ADR methods a means
of settling a dispute outside of the court and legal formalities. Other characteristics
that mediation and conciliation share is that of being elastic, controlled and private.
Again there is an invigilator that facilitates the entire process that is a third unbiased
party to the procedure. The invigilator in conciliation is called a conciliator. As with
mediation, the conciliator aims to reach a quick and simple consensus between the
disputing parties. (Rechtsstandort Hamburg, 2009: Online)
Conciliation differs from mediation through the proposal and/or findings that is
supplied to the parties during the proceedings. As mentioned with evaluative
mediation where the mediator provides his decision and/or proposal at the end of the
negotiations, a conciliator is asked by the parties during the proceedings to issue
them with a proposal based on the conciliator’s findings. (Rechtsstandort Hamburg,
2009: Online)
With conciliation, the conciliator will take into account the parties’ legal, financial and
personal positions into consideration when making his decision. These proceedings
are done in private and excluded publicity. There are no specific structure in place to
arrange a conciliation process. (Rechtsstandort Hamburg, 2009: Online)
6.2. The power of the Conciliator
The Conciliator merely acts as the gateway through which the parties communicate.
With conciliation the conciliator can be asked to provide the parties with a
determination of his findings. The conciliator helps and assists in providing a desired
consensus.

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The conciliator has among many the following powers and duties:
 The mediator has the opportunity to conduct the conciliation process in the
manner, place and fashion that he prefers.
 The mediator warrants that the procedure is managed properly and that both
parties have the prospect to give their feedback and inputs to the situation.
 The responsibility of the entire process lies with the conciliator. The conciliator
can thus more or less determine the period in which the dispute will be
settled.
 The conciliator monitors the procedure and discussions between the parties to
make sure that it centres the conversation on the dispute.
6.3. Advantages of Conciliation
There are several advantages for conciliation according to Ellis (2014: Online),
namely:
 The parties can pick out the time and place for the conciliation proceedings;
 The parties can pick structure and content of the conciliation proceedings;
 Conciliation can be set in place for any dispute and during any stage of the
construction period;
 It allows for relationships to be conserved for the duration of and after the
conciliation process; and
 Both of the parties can reach a consensus by incorporating the flexibility and
informality of the conciliation process.
 Conciliation is time and cost efficient;

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7. CONCLUSIONS & RECOMMENDATIONS
7.1. Conclusion
As per the information contained in the previous chapters of this paper, it is clear that
the whole Alternative Dispute Resolution process that contains Conciliation,
Mediation, Adjudication, and arbitration is a very sufficient means to resolve the
disputes that arise within the construction industry.
Through the use of sophisticated ADR methods and procedures, the parties that are
in dispute can with ease hopefully settle all the disputes that might arise. If these
disputes are left for later and not settled in due time, it can be a challenging hurdle to
overcome for both of the parties. By implementing the ADR methods and
procedures, the parties can reduce their transaction costs and the consequent
litigation costs by a great monetary value and/or percentage. (Copple, 2011:11)
I will conclude by ranking the ADR methods from the inexpensive and swiftest
method to the most expensive and elongated method.
Mediation and conciliation is close to one and another, however due to the
conciliator being able to provide a determination on his findings, I feel that
Conciliation must be the first option to consider when two parties are in dispute.
Mediation then follows conciliation when the conciliation process failed. If the
mediation process fails, adjudication is next in line. Adjudication is a bit more formal
than mediation and various rules according to the JBCC exists. If adjudication is also
fail, then the final ADR method must be used, which is arbitration.
To sum up the ADR methods from first preference to the most prolonged method:
1) Conciliation;
2) Mediation;
3) Adjudication; and
4) Arbitration.
“The Art of War” Sun Tzu illustrated to the general public that “war is a tool of
diplomacy, we must not forget that litigation is only a tool of negotiation and not an
end in itself.” (Copple, 2011:11)

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7.2. Recommendations
I recommend that clients in disputes revert back to the shortest and easiest method
of ADR which is conciliation. The conciliator can provide you with his determination
in order to have an unbiased third party decision.

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8. BIBLIOGRAPHY
Nabatchi, T. 2007. The Institutionalization of Alternative Dispute Resolution in the
Federal Government. American Society for Public Administration, 67(4), pp. 646-
661. DOI: http://www.jstor.org/stable/4624615
Copple, R.F. 2011. A Stepped Approach to Successful NRD Alternative Dispute
Resolution. Natural Resources & Environment, 26(2), pp. 11-14. DOI:
http://www.jstor.org/stable/23054869
Lipsky, D.B. 2007. Resolving Workplace Conflict: The Alternative Dispute Resolution
Revolution and Some Lessons We Have Learned. Perspectives on Work, 10(2), pp.
11-13. DOI: http://www.jstor.org/stable/23272120
Albornoz, M.M. & Martín, N.G. 2012. Feasibility Analysis of Online Dispute
Resolution in Developing Countries. The University of Miami Inter-American Law
Review, 44(1), pp. 39-61. DOI: http://www.jstor.org/stable/23645500
Bryant, T.J. & Lane, M.E. 2013. Companion Dispute Resolution: Three-Dimensional
Thinking and the Effective Use of Mediation with Traditional Litigation of Franchise
Disputes. Franchise Law Journal, 33(2), pp. 261-277. DOI:
Lesser, S.B. & Bacon, B.A. 2008. Construction Lawyer's Guide To the 2007 AIA
A201 "General Conditions Of The contract For Construction”. Tort Trial & Insurance
Practice Law Journal, 43(4) & 44(1), pp. 113-149. DOI:
Sullivan, E. & Solomou, A. 2011. Alternative Dispute Resolution in Land Use
Disputes—Two Continents and Two Approaches. The Urban Lawyer, 43(4), pp.
1035-1059. DOI: http://www.jstor.org/stable/41638050
DeLong, S.W. 2015. What is a Contract?. South Carolina Law Review, 67(99), pp.
99-161. DOI: http://0-
content.ebscohost.com.wagtail.ufs.ac.za/ContentServer.asp?T=P&P=AN&K=120805
448&S=R&D=a9h&EbscoContent=dGJyMMvl7ESeqLI4v%2BbwOLCmr0%2BeprRS
sKy4TLeWxWXS&ContentCustomer=dGJyMPGqr0qwrrBOuePfgeyx43zx

P a g e | 22
Beukes, A. 2017 (9th Edition). Guidelines for proposals, thesis structure, abstracts
and articles for students of the Department Quantity Surveying and Construction
Management. Bloemfontein: University of the Free State.
Verster, J.J.P. 2011. Professional Practise for Architects, BPKR7914, Document 1,
Part 1: Arbitration and ADR. Department Quantity Surveying and Construction
Management. Bloemfontein: University of the Free State.
Van der Merwe, C.J. 2009. Is adjudication a better procedure for construction
dispute resolving than mediation?. Thesis (BSc Hons in Quantity Surveying)
Pretoria. University of Pretoria.
The Joint Building Contracts Committee. 2014. Principal Building Agreement. South
Africa. Edition 6.1. Available from:
<http://www.saiat.org.za/PBA%20EDUCATIONAL%20COPY.pdf> [Accessed 22
April 2017]
Rechtsstandort Hamburg E.V. 2009. Dispute resolution. [Online]
Rothenbaumchaussee, Hamburg: Rechtsstandort Hamburg E.V. Available from:<
http://www.dispute-resolution-hamburg.com/> [Accessed 22 April 2017]
Construction Law Made Easy. 2014. Advantages and Disadvantages of Dispute
Resolution Processes. [Online] Minter Ellison. Available from:
<http://www.constructionlawmadeeasy.com/advantagesanddisadvantages>
[Accessed 22 April 2017]

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