BUSINESS AND TRAINING 15

By

Uwe Putlitz

Uwe Putlitz delves into the matter of mediation in the role of an expert in the resolution of disputes in part two of his examination of the subject .

We looked at the role of the expert in last month ’ s issue . Let ’ s open the door on what happens in mediation .

The Mediation The best opportunity to settle a case may be through mediation – a confidential process without prejudice to either party , sharing the mediator ’ s charges equally . The mediator will ordinarily : 1 . Invite the aggrieved party to present its case and the relief sought ; 2 . The other party will be given a right of reply ; 3 . Allow a submission in reply to the reply ! 4 . Meet separately with each party ( if required , for the same duration ), and their legal representatives to clarify issues confidentially ;

5 . Encourage compromise ( s ) or concession ( s ) by one party and convey such ( counter ) offer ( s ) to the other party ;

6 . Convene a session with both parties and / or their respective agents ;

7 . Oversee the process if a settlement is forthcoming – to ensure the terms of such an agreement are carefully crafted to record all critical details – to be signed by both parties .

If the matter is not settled , the matter may be referred to adjudication , arbitration or to the courts depending on the complexity and quantum in dispute – resolution may take weeks or even months to conclude . The claimant and the respondent may each be represented by an instructed legal representative who may be assisted by an expert . If the matter has progressed where a hearing is required ( during an adjudication or an arbitration ), the adjudicator or the arbitrator ( or legal representative ) must issue directions to the parties regarding the : 1 . Statement of claim ( SoC ); 2 . Statement of defence ( SoD );

3 . Reply to the SoD and a counterclaim ( if any )

( RtD / CC ); 4 . Provision of expert witness reports ( EWR ); 5 . A date for the hearing ( DoH ), the location of the venue , the start time and scheduled duration ;

6 . A date by which a case summary and relief sought must be filed and served on the other Party .

The function of the expert is to guide the adjudicator , arbitrator or a court , but not to make a decision on their behalf . An expert may be called upon by one of the parties to support a particular contention by extracting salient facts and consequences arising therefrom in a neutral fashion , uninfluenced by that party .

Uwe Putlitz is a registered professional Architect and Construction Project Manager , a Fellow of the Royal Institute of Chartered Surveyors ( RICS ) and is a visiting lecturer at the School of Construction Economics and Management at the University of the Witwatersrand . Having recently retired as the Chief Executive Officer of the Joint Building Contracts Committee ( JBCC ) he specialises in the avoidance of construction disputes by way of lectures , technical articles dealing with aspects of contract administration for various industry publications arising from the use of Standardform Contracts including the Federation Internationale des Ingenieurs-Conseils ( FIDIC ), the General Conditions of Contract ( GCC ), the JBCC or the New Engineering Contract ( NEC ) to find an acceptable settlement without resorting to legal processes , where possible . More info : info @ buildstrat . co . za

“ The adjudicator or the arbitrator must determine the need to appoint an expert .”

July 2024 Volume 30 I Number 5 www . plumbingafrica . co . za