An investigation into the mediation of disputes in the South African construction industry

This paper is based on research carried out in order to investigate whether the practice of mediation in the South African construction industry is consistent with the generally accepted principles of the mediation process. Despite debate and differences, as well as the continuous evolution of the mediation process, the process is underpinned by definite and accepted principles, processes, practices and objectives. Principles that find resonance throughout the literature are that mediation is voluntary, non-binding, flexible, informal, confidential and, although the process involves a third party, it is the parties who remain responsible for the outcome. The role, functions, skills and techniques employed by the third party, or mediator, are specific to mediation and require training and practice for success. The main finding of the research was that the practice of mediation in the South African construction industry is not consistent with the accepted principles of the mediation process, as the mediator does not generally assist the parties in determining their own settlement; instead the mediation activities centre mainly on the collection of information on the dispute by the mediator and the formulation of a solution by the mediator. The research also revealed that the mediator's knowledge and utilisation of specific mediation process skills and techniques were limited.