With the increasing development of complex and emphasis on fast track construction projects, disputes are increasing in the Built Environment. However, tens of thousands of rands could be saved by avoiding court action and opting for Alternative Dispute Resolution (ADR) processes such as mediation, says Errol Laing, managing director of QS 4U, a member company of the Association of South African Quantity Surveyors (ASAQS).
Laing says many members of the construction industry still do not seem to fully understand what mediation is - and how appointing a qualified quantity surveyor to mediate could avoid lengthy and cost-eroding arbitration and other expensive legal action to settle disputes.
“Taking payment and performance disputes into court, for example, could cost at least ten times more than paying a QS trained in this field to solve the dispute via consultation with both parties. Many South African quantity surveyors have undergone training to undertake mediating roles and this route towards problem resolution has many benefits for companies finding themselves in adverse situations that could place one or both parties in financial jeopardy. With many smaller companies in the construction industry struggling to survive in the current economic climate, expensive court action to recover vital finances could just be the straw to break a small business enterprise’s back.”
Laing contends that mediation is generally less expensive, faster and more effective in resolving disputes than litigation or even arbitration. It is also less threatening and stressful and offers the parties who are in dispute an opportunity to participate in a process that encourages them to try and solve their differences in an amicable way so that relationships are preserved and they could perhaps work with each other again in future.
“However, it is important that the parties who are in dispute should both have genuine desires to settle their differences without recourse to litigation or arbitration. The QS involved would be able to recognise and influence this mindset and advise the merits of compromise - which could mean relinquishing some individual rights to achieve a satisfactory settlement. In any event, mediation proceedings are usually non-binding until a mutually agreed settlement is achieved so either party can still resort to arbitration or litigation if the mediation attempt has failed.”
Larry Feinberg, executive director of ASAQS, says it is also important to note that disputes could in any event be avoided through sound management of a building project.
“Appointing a qualified and accredited quantity surveyor to proactively manage a project is the ideal starting point for the avoidance of disputes. Such a quantity surveyor will be proactive in planning and managing future work on a project, as well as raising early any issues of concern. This will lead to problems being analysed and managed early enough to avoid serious disputes among the various parties involved. However, should disputes later become unavoidable,suitably qualified quantity surveyors could again play an important dispute resolution role,” Feinberg added.
