Mediation is a voluntary process and the parties can at any stage terminate the mediation and opt to have the matter settled through formal (and expensive) litigation. In some instances, the parties have a valid agreement in terms whereof it is stipulated what would happen in the event of a dispute.
However, in the majority of instances parties only have a verbal agreement and have not come to terms how a dispute should be managed. After the matter has been investigated and evaluated by the BDTSA, and before proceeding to mediation, the parties will need to agree to mediate using the BDTSA Mediation Rules – these Rules could be found on our website or be downloaded here.
The commitment to the mediation process can happen in one of two ways:
• there may be a clause in the contract under which the parties’ dispute has arisen which states that the parties have agreed to mediate under the BDTA Mediation Rules, for example:
Any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, shall be referred to mediation in accordance with the Mediation Rules of the Building Disputes Tribunal of South Africa.
• parties to an existing dispute, whether or not there is a mediation clause in any underlying contract, may agree to refer that dispute to Mediation under the Mediation Rules of the Building Disputes Tribunal South Africa by signing the Mediation Agreement at Annexure 2 to the BDTSA Mediation Rules or it could be downloaded here.