There is a growing awareness internationally of the merits of mediation as a process better suited for resolution of building and construction related disputes. This development flows from the recognition of finding alternative methods for resolving disputes requiring amicable inexpensive resolution rather than adversarial costly litigation.
Mediation is a consensual, confidential and relatively informal negotiation process in which parties to a dispute use the services of a skilled and independent mediator to assist them in defining the issues at hand, to develop and explore settlement options and to negotiate a mutually acceptable settlement with which both parties are happy with.
The objective of mediation is to enable and empower the parties to negotiate and resolve the dispute promptly, cost effectively and confidentially rather than to have a decision imposed upon them by a judge, arbitrator or adjudicator. Mediation enables the parties to negotiate flexible and creative solutions which need not conform to strict legal rights or general community standards.
When concluding your building contract, it will be a good idea to make provision for a mediation clause. This will ensure that both parties have the reassurance that there are remedial steps in place when a dispute arises.
The South African Law Reform Commission describes mediation as the introduction of a neutral third party into a dispute and to create a safe space within which parties are able to explore possible solutions to bring about a negotiated agreement acceptable to both.
A more nuanced definition is that construction mediation is a process in which the mediator, an impartial third party who has no decision making powers, facilitates the negotiations between disputing parties with the object of getting them back on speaking terms and helping them to make their own decisions on some or all building / construction related issues and if possible to reach a mutually satisfactory settlement agreement that recognises the needs and interests of all the parties concerned.