A.L. Povey , K.S. Cattell & K.A. Michell

Mediation practice in the South African
construction industry

Peer reviewed

Abstract
Dissatisfaction with the traditional methods of litigation and arbitration for set
tling disputes has led to an increase in the growth of alternative dispute reso
lution (ADR) processes. Presently mediation is the ADR process most frequently
used for settling disputes that arise within the South African construction indus
try. This paper presents the findings of an investigation into the practice of
mediation in the South African construction industry. The main findings of the
investigation were that the mediators are more intent on resolving the dispute
for the parties, than assisting the parties in seeking their own settlement to the
dispute. The majority of the respondents place greater emphasis on the im
portance of their technical expertise, authority and their understanding of the
matter in dispute rather than on moving the parties towards an in depth
understanding of each other’s perspectives on the matter in dispute. Finally,
it is concluded that the process being employed by mediators in the South
African construction industry is not consistent with the generally accepted
principles of the mediation process.
Keywords: construction disputes, dispute resolution, mediation

A.L. Povey, Research Assistant, Dept. of Civil Engineering, University of Cape
Town, South Africa.

Prof. K.S. Cattell, Associate Professor, Dept. of Construction Economics
and Management, University of Cape Town, South Africa. Tel: +27 21 650 2452, E
mail: <cattellk@ebe.uct.ac.za>
K.A. Michell, Senior Lecturer, Dept. of Construction Economics and Manage
ment, University of Cape Town, South Africa. Private Bag Rondebosch, 7700,
Tel: +27 21 650 3443, Fax: +27 21 689 7564, E mail: <hallka@ebe.uct.ac.za>

Abstrak
Ontevredenheid met die meer tradisionele metodes van geskilbeslegting,
naamlik litigasie en arbitrasie, het tot gevolg dat geskilbeslegtingsmetode aan
die toeneem is. Mediasie is huidiglik die geskilbeslegtingsmetode wat meeren
deels gebruik word vir die oplossing van geskille wat uit die Suid Afrikaanse
boubedryf voortspruit. Hierdie referaat lê die bevindinge van ’n ondersoek na
die praktyke in mediasie, soos in die boubedryf toegepas, voor. Die mees op
vallende bevindinge van die ondersoek toon dat mediators ’n geneigdheid
het om die geskille namens die partye op te los, eerder as om hul by te staan
in die proses van oplossing of te wel skikking van die dispuut. Die meerderheid
van die respondente het eerder groot nadruk op hul eie tegniese bedrewen
heid, bevoegdheid en begrip van die aangeleentheid wat aan hul voorgelê
is, geplaas eerder as om ’n raadgewende rol in te neem en die partye te
ondersteun in hul onderskeie perspektiewe en begrip van die geskil. Die ge
volgtrekking is dus dat die meerderheid van die ondervraagde bemiddelaars
wat gemoed is met die bemiddeling van geskille in die Suid Afrikaanse bou
bedryf, die proses uitvoer op ’n manier wat teenstrydig is met die algemeen
aanvaarde grondbeginsels van die mediasieproses.
Sleutelwoorde: konstruksiegeskille, geskilbeslegting, mediasie

Povey, Cattell & Michell • Mediation practice

1. Introduction

Although the potential for dispute is inherent in any contract-ual relationship, given the unique and complex nature of aconstruction contract, disputes in construction are both in-
evitable and a common occurrence (Hibberd & Newman, 1999;
Chan, 1998; Delmon, 1998; Clegg, 1992). Few role players in the
construction industry would disagree with Sir Michael Latham’s view
(1995: 87) that the best solution to the problem is to prevent and
so avoid disputes. However, despite everyone’s best efforts, dis-
putes will arise, with the successful completion of a project often
relying on the expeditious resolution of disputes.

The search for alternative methods of dispute resolution (ADR) was
originally generated in the United States of America (USA) (Marston,
1999) as a result of the dissatisfaction with the traditional methods
for settling disputes. This dissatisfaction was based on the percep-
tion that litigation and arbitration were formal, time-consuming,
expensive, traumatic, complex and adversarial. Worldwide atten-
tion and growing awareness of ADR resulted in the evolution of
various ADR approaches, adapted in attempts to avoid or at least
minimize the disruptive and costly impact of the more traditional
methods of dispute resolution, arbitration and litigation. The ADR
technique most frequently referred to in literature on ADR is medi-
ation (Gould, 1999: 575).

Historically the processes of negotiation, mediation and adjudica-
tion are the main alternatives to arbitration and litigation for settling
construction disputes in South Africa. Mediation has been used in the
construction industry for settling disputes for the past two decades,
with a mediation clause introduced into the General Conditions of
Contract for Works of Civil Engineering Construction (GCC) in 1982,
and more recently in 1991 into the Principal Building Agreement
(PBA) published by the Joint Building Contracts Committee (JBCC).
However, with the increase in the use of the internationally accept-
ed Fédération Internationale des Ingeniéurs-Conseils (FIDIC) and
New Engineering Contracts (NEC) contract documents, Dispute
Review Boards and contractual adjudication were introduced into
the industry (van Langelaar, 2001: 215), culminating in the inclusion
of adjudication as a first course of action in the JBCC 2005 PBA and
as an option in the GCC 2004 agreement.

Acta Structilia 2006:13(1)

2. ADR, with specific reference to mediation research
in the construction industry

A substantial amount of research and literature exists on media-
tion as it is employed by mediators and lawyers worldwide and in
various fields of dispute resolution. However, research and literature
on the mediation of disputes within the South African construction
industry is limited and generally found to be of an advisory or
anecdotal nature within works on arbitration or construction law.
Empirical research into mediation, as a dispute resolution mecha-
nism for use in the construction industry, has however, received some
attention in other countries. Such research was generally aimed at
establishing the perceptions, attitudes and experiences of industry
participants towards mediation as an ADR mechanism (Brooker &
Lavers, 2000; Gould, 1999; Stipanowich & Henderson, 1992).

The 1991 American Bar Association (ABA) Forum on the Construction
Industry survey into mediation and mini-trial of construction disputes
in the USA represents one of the first empirical investigations into non-
binding dispute resolution in the construction field. Stipanowich &
Henderson (1992) concluded that although settlement-orientated
processes such as mediation and mini-trials are less well understood
than arbitration, the collective experience of the construction bar
might encourage optimal use of such alternatives.

ADR in the UK is seen to be in its formative stages (Brooker & Lavers,
2000: 289). The first major survey into dispute resolution in the UK
construction industry was conducted in 1994 (Gould, 1999). The re-
search found that less than 30% of the respondents had actually
been involved in an ADR process and that the UK construction in-
dustry lacked an understanding of the principles of ADR. A second
survey by Gould reported an increase in mediation experiences
but concluded that ‘formal mediation’, defined by Gould (1999:
579) as a “private, informal process in which parties are assisted by
one or more third parties in their efforts towards settlement”, was
rarely employed.

Brooker & Lavers’ research into the processes, perceptions and
predictions regarding dispute resolution in the UK construction indus-
try, found that, on balance, a negative experience with dispute
resolution related to arbitration and litigation, while all other dispute
resolution processes produced positive results (Brooker & Lavers,

Povey, Cattell & Michell • Mediation practice

2000). Negotiation produced the greatest level of positive experi-
ence, closely followed by mediation.

Respondents from both UK surveys predicted that, of the dispute
resolution processes in the UK, the use of adjudication would make
the most significant increase in the UK construction industry over
ADR processes such as mediation or expert determination.

South African research into ADR in the construction industry includes
Schindler’s (1989) research into the role of mediation and arbitra-
tion as dispute resolution mechanisms in the construction industry
and Barth’s (1991) investigation into the suitability of arbitration as
a dispute settling mechanism in the construction industry. Schindler’s
(1989) research focused on the awareness, experience, attitudes
and perceptions of architects, engineers and contractors to medi-
ation and arbitration. Schindler (1989) concluded that these par-
ticipants had little experience in mediation and yet had negative
attitudes and perceptions about the process. Barth (1991), in in-
vestigating the suitability of arbitration as a dispute settling mech-
anism in the construction industry, found that mediation was con-
sidered a more suitable dispute settling mechanism than litigation or
arbitration by the industry participants (including attorneys). Watson
(1996) analysed 44 different disputes with a view to establishing the
effectiveness of the different dispute resolution processes utilised.
Watson (1996) established that 85% of the cases were resolved
through the mediation process at a fraction of the cost and in a
fraction of the time involved in a number of arbitrations on similar
issues.

3. Principles of the mediation process
Mediation and or conciliation are the best-known forms of ADR in
international construction (Lavers, 1992: 12; Mackie, 1992: 304).
However, while some authors distinguish between conciliation and
mediation (Hibberd & Newman, 1999: 57; Jones, 1999: 377; Butler
& Finsen, 1993: 10) others choose to use the terms interchangeably
(Chan, 1998: 271; Gould, 1999: 579). This debate, as to the difference
between mediation and conciliation, is not restricted to mediation
in the construction industry, see for example: Brown & Marriott,
1993: 191 and Boulle & Rycroft, 1997: 62.

In spite of the debates and differences, as well as the continuous
evolution of the mediation process, accepted principles, processes

Acta Structilia 2006:13(1)

and practices of mediation emerge from the literature on media-
tion. These principles and objectives are often used as the basis for
comparing mediation to other forms of dispute resolution, in particu-
lar arbitration and litigation. Principles that find resonance through-
out the literature are that mediation is voluntary, non-binding, flexible,
informal, confidential and involves a third party, but it is the parties
who are responsible for the outcome (Hibberd & Newman, 1999: 62;
Boulle & Rycroft, 1997: 33; Kwayke, 1993: 2; Butler & Finsen, 1993: 14;
Bevan, 1992: 27; Pretorius, 1993: 8).

While most authors acknowledge that mediation is not easy to
define, they agree with the core features of the process, namely,
that mediation is an extension of the negotiation process involving
the services of a third party engaged by the disputants to assist them
in reaching agreement on the issues in dispute. There are various ap-
proaches that describe the different degrees of intervention by the
mediator into the process, see for example: Moore, 1986; Silbey &
Merry, 2001; Brown & Marriott, 1993; Riskin, 2001; Folger & Jones, 1994.

In order to deal with some of the definitional problems in the field of
mediation, various models of mediation have been proposed (Hib-
berd & Newman, 1999; Boulle & Rycroft, 1997; Love, 2001; Riskin,
2001; Menkel-Meadow, 2001; Brown & Marriott, 1993). Notwithstand-
ing the diversity in the models of mediations, most of these authors
concluded that this diversity should not pose problems for parties
or mediators as long as the parties understand the roles and different
approaches to mediation (Boulle & Rycroft, 1997: 6; Butler & Finsen,
1993: 11; Hibberd & Newman, 1999: 59; Menkel-Meadow, 2001: 228).

It is generally accepted that the role and functions of the mediator
are linked to the approach used in the mediation, i.e. either evalu-
ative or facilitative (Riskin, 2001: 137; Hibberd & Newman, 1999: 63;
Cooper, 1992: 293). Boulle & Rycroft (1997: 113) use the term ‘roles’
to define the overall aim and objectives of the mediator. They
describe the roles of the mediator as being to create the optimal
conditions for the parties to make effective decisions and to assist
the parties to negotiate an agreement. They see the role descrip-
tions as operating at a high level of generality and so do not dis-
close much about what the mediator does. Instead they use the
term ‘functions’ to refer to the more specific tasks and behaviours
of mediators which contribute to the overall achievement of their
role, such as, developing trust and confidence, establishing a frame-
work for co-operative decision making, analysing the conflict and

Povey, Cattell & Michell • Mediation practice

designing appropriate interventions, promoting constructive com-
munication, facilitating negotiation and problem-solving, educating
the parties, empowering the parties, imposing pressure to settle, pro-
moting reality, advising, evaluating and terminating the mediation
(Boulle & Rycroft, 1997: 116).

A number of authors have divided the mediation process into differ-
ent stages or phases for the purpose of analysis (Hibberd & New-
man, 1999: 67-97; Boulle & Rycroft, 1997: 86; Murray et al.; 1996: 301;
Nupen, 1993: 41-49; Brown & Marriott, 1993, 121-150; Cooper, 1992:
289; Moore, 1986).

Murray et al., (1996: 301) proposed that the steps involved in the
classical ‘form’ of mediation are applicable to all forms of mediation.
Their description of the following six stages in a classical mediation,
generally mirror those described by the other authors, namely:
introductory remarks by mediator; a statement of the problem by
the parties; information gathering; problem identification; problem
solving including gathering options and bargaining, and finally,
writing the agreement.

Problem-solving is central to the mediation process, with negotiation,
bargaining and decision-making normally occupying most of the
time during mediation (Boulle & Rycroft, 1997: 96). Much of the litera-
ture on mediation endorses the problem-solving or interest-based
approaches to negotiation however both positional and problem-
solving negotiations are encountered in mediation practice.

Authors on mediation are in broad agreement that the mediator’s
role and function must be complemented by a set of skills and
techniques commensurate with the role he/she takes on (Riskin,
2001: 156; Boulle & Rycroft,1997: 139; Murray et al., 1996: 304; Butler
& Finsen, 1993: 13; Mackie, 1992: 304; Cooper, 1992: 295). Bowling
& Hoffman (2000) cite empirical studies that consistently show high
rates of settlement, as well as high levels of mediation participation
satisfaction regardless of the mediation styles or philosophical orien-
tations of the mediator e.g. evaluative vs. facilitative or transforma-
tive vs. problem-solving. Instead it was found that techniques were
important and that mediation training is most important in en-
hancing skills and techniques. In his examination of the 1991 ABA
Forum on the Construction Industry survey, Brooker & Lavers (2000:
287) citing Henderson (1996) report that he found that the quality of
the mediator was a significant factor affecting the settlement rate.

Acta Structilia 2006:13(1)

Furthermore, that Henderson (1996) found that the more techniques
the mediator used, the more likely settlement was to be achieved.
In other words, mediators who used a combination of interventions,
such as caucusing, consulting records or experts, or visiting job-sites,
increased the chance of a successful mediation. More importantly,
he found that fewer settlements were reached in mediations where
the skills of the mediator were seen as weak.

4. The Survey

4.1 Focus of the study
Specific objectives included: establishing the type and level of pro-
fessional training and experience of the respondents; establishing
the nature and level of training and experience in mediation of the
respondents; exploring the perceptions of the respondents regard-
ing the role and functions of a mediator of a construction dispute;
determining the procedural steps and activities that the mediators
follow during the mediation process; and establishing the extent
of the mediators’ knowledge, and use of skills and technique asso-
ciated with mediation.

4.2 Methodology
Primary data were collected by way of 63 questionnaires received
from the 206 posted to mediators recognised nationally by the South
African Institution of Civil Engineers (SAICE) and the South African
Association of Consulting Engineers (SAACE), as well as from medi-
ators listed by the Western Cape Branch of the Association of Arbi-
trators of Southern Africa (AASA). The questionnaire responses were
analysed using basic descriptive statistics.

4.3 Survey results

4.3.1 Professional training and experience of mediators
The research indicated that the majority of the respondents were
male, consulting engineers over 60 years of age. Nearly one quarter
(24%) of this majority were retired, but continued to offer their ser-
vices to the industry. Ninety seven percent (97%) of the respondents
were in possession of a tertiary qualification, with qualified engineers
(75%), both Bachelors and Masters, dominating the group. As ex-

Povey, Cattell & Michell • Mediation practice

pected, the academic qualifications of the respondents corres-
ponded closely with the nature of business of the respondents,
where consulting engineers and civil engineering contractors made
up 70% of the group.

Although the majority of the respondents have engineering back-
grounds, as opposed to an architectural, surveying or law back-
ground, this finding cannot be interpreted to mean that the majority
of the mediators of construction industry disputes have engineering
backgrounds as the surveyed sample was a non-probability, con-
venience sample. Instead, the findings of the survey should be seen
against this background. However, no significant differences in the
views or opinions on research issues were found to exist between
the two groups, that is, those with an engineering background and
those with other backgrounds.

The literature review indicated that internationally dispute resolution,
including mediation, is the domain of the legal fraternity (Menkel-
Meadow, 2000; Gould, 1999; Boulle & Rycroft, 1997; Stipanowich &
Henderson, 1992; Mackie, 1991 and 1992; Bevan, 1992). The domin-
ance of the legal sector in construction mediations was confirmed
by an ABA Forum on the Construction Industry survey, where Stipano-
wich & Henderson (1992: 323) found that most mediators (64,5%)
were attorneys and 21,4% were retired judges. Design professionals,
contractors, claims experts and professors were employed far less
frequently.

In South Africa the situation appears to be different, in that mediators
are drawn mainly from the professions in the construction industry,
with minimal involvement from lawyers. This tendency echoes the
SAACE (1993) general philosophy that disputes arising in the execu-
tion of engineering works can best be settled by engineer media-
tors. However, Butler & Finsen (1992: 24) noted that lawyers were
becoming more active within the AASA, which also acts as a source
of mediators.

4.3.2 Training and experience in mediation
The respondents reported significant experience in mediation with
29% having been involved in the mediation of disputes for more
than 20 years and a further 32% for between 10 and 20 years. This
experience was cited by the majority (95%) of the respondents as
their main source of knowledge of the mediation process, with

Acta Structilia 2006:13(1)

44% citing ‘workshops and seminars’; 43% ‘practice notes, journals
and other literature’ and 40%, ‘formal training’, as the main sources
of knowledge.

The majority (97%) of the respondents considered their knowledge
of the mediation process to be, at the least, average (rating ≥ 3 of
5) with approximately one third of the respondents considering it to
be substantial (a 5 of 5 rating) and a further third considering it to
be adequate (a 4 of 5 rating).

4.3.3 The initiation of the mediation process
Sixty percent (60%) of the mediation cases described by the re-
spondents were initiated by the parties themselves, either jointly or
by one of the parties. The mediator was appointed by a party
other than the disputing parties, such as the President of the SAICE
or AASA in 40% of the cases, with the parties jointly approaching
the mediator in 32% of the cases and one party approaching the
mediator in 27% of the cases.

Nearly two thirds (67%) of the mediations were initiated in terms of
a clause in a contract, although not all the clauses made mediation
compulsory. Fifty nine percent (59%) of the cases were also voluntary.

The most significant finding was that in 41% of the cases, the parties
to the mediation signed an agreement binding themselves to the
mediator’s opinion until otherwise ordered in arbitration or litigation
proceedings. This finding is highly significant in light of the generally
accepted view that a mediator does not make a binding decision;
instead the parties are encouraged to reach their own settlement
by which they can agree to be bound.

Mediation is not characterised as a ‘binding’ process in the sense
that a third party adjudicates and imposes a decision or solution
on the parties in dispute. Instead, the intended principle behind
mediation is for the parties to agree to a settlement on the issues
in dispute and for that agreement to be binding, as with any written
agreement. The fundamental difference between these two ap-
proaches lies in the ownership of the process. In mediation, even
if the parties do not control or manage the process, they are em-
powered, in terms of the principles of the process, to control the
outcome and are therefore entitled to accept or reject the out-
come. In contrast herewith, the more evaluative types of dispute
resolution, such as litigation, arbitration and contractual adjudica-

Povey, Cattell & Michell • Mediation practice

tion, empower the third party with the control and management of
the process as well as of the process outcome.

Many other ADR processes are discussed in the literature review in
which the role of a third party is to make a binding decision (final
or interim), however it is clear that mediation was never intended
to be one of this group. A possible reason for the introduction of
such a condition as part of mediation could be found in the re-
sponse of the contractors surveyed in the UK (Brooker & Lavers,
2000: 292) who believed that in order for an ADR process to suc-
ceed, it had to be binding, as the non-binding feature was seen
as a delaying tactic. However, it must be noted that this same group
of respondents were found to have very little understanding of the
principles and aims of mediation.

It was also found that 62% of these binding agreements occurred
in compulsory mediations while 39% applied to voluntary media-
tions. No significant relationship could be found between the initi-
ation of the mediation and the agreement to be bound by the
contract. It is however argued that a process, where the parties
agree to be bound by a third party’s opinion or decision prior to
the commencement of the process, as in 41% of the cases ana-
lysed, cannot be called mediation. Instead one would need to
look to other forms of third party intervention in order to describe
such a process, such as expert determination or contractual adju-
dication.

Although most authors maintain that ‘mandatory mediation’, in
which the parties are compelled to participate, undermines the
integrity of mediation, Boulle & Rycroft (1997: 15) argue that while
entry into the process may be compulsory as long as the outcome
of the mediation is voluntary, there need not be a contradiction in
terms. Notwithstanding this argument, Stipanowich & Henderson
(1992: 326) found that where parties agreed to mediation, settle-
ment or partial settlement occurred in most cases (63% and 9% re-
spectively), however, when the parties were required to use medi-
ation by contract or by the court, only 57% were settled.

Acta Structilia 2006:13(1)

4.3.4 The procedural steps of the mediation process
The majority of the mediation cases described by the respondents
comprised the following main activities:

• Preliminary or preparatory matters (9% of total mediation
time);

• Obtaining information (43% of total mediation time);

• Problem solving (20% of total mediation time); and

• Drafting the final decision/opinion/agreement (27% of total
mediation time).

On average, it appears that the respondents allocated only one fifth
(20%) of the total mediation time to solution-seeking activities. The
majority of the time was allocated to gathering information on the
dispute (43%) and drafting the final decision/opinion/agreement
(27%).

Generally, the first contact between the mediator and the parties
was personal, with only a quarter of the respondents preferring to
communicate with the parties in writing. In most cases, this first con-
tact was in the form of a personal telephone call for the purpose
of organising a meeting with the parties at which the mediators
outlined the procedure and programme to be followed.

When obtaining information, the respondents relied predominantly
on written sources of information on the dispute, either in the form
of existing documentation and correspondence between the par-
ties or from written presentations. Oral presentations supplemented
the written documentation and presentations in 64% of the cases.

In considering the role of problem solving during the process, it is
significant that in a process aimed at assisting parties in dispute to
reach agreement, indications were that only one fifth (20%) of the
total time of a mediation was allocated to problem-solving dis-
cussions. Furthermore, no solution-seeking discussions took place in
58% of the cases, since after the information on the dispute had
been obtained, the onus was placed on the mediator to suggest
or submit an opinion or decision on the dispute, without any further
party involvement. Boulle & Rycroft (1997: 96) view the problem-
solving phase of the mediation as the “core part of the process
that will normally occupy most of the time in a mediation.” Further-
more, the research shows that negotiations between the parties

Povey, Cattell & Michell • Mediation practice

took place through the mediator rather than directly between the
parties themselves. From this result it could be inferred that, although
the mediator facilitated the joint solution-seeking discussions be-
tween the parties, his/her level of intervention was high.

As could be expected, negotiations dominated cases where the
mediator facilitated joint solution-seeking discussions between the
parties but played a lesser role in mediations where the mediator
offered an opinion or solution.

4.3.5 Use of published guidelines on mediation
The research showed that that nearly one quarter (25%) of the re-
spondents did not use any of the guidelines published by the SAICE,
SAACE and AASA, while one third of the respondents (33%) used a
combination of these guidelines and 33% used one of the three
guidelines only.

The relative frequencies of use of the three published guidelines
were calculated as 28% for the SAICE guidelines, 29% for the AASA
guidelines and 21% for the SAACE guidelines, with no significant
relationship found to exist between the discipline of the respond-
ents (engineer or non-engineer) and the guidelines to which they
referred. From these findings it could be implied that the respondents
did not place great reliance on any particular published guideline,
instead they relied on a combination of guidelines together with
their own tried and tested experiences, in deciding the procedure.

Brooker & Lavers (2000: 288) found that those mediations, which
used prescribed rules developed by professional bodies or the court,
were less likely to settle than when the parties had constructed their
own procedures. Stipanowich & Henderson (1992: 323) found that
the major sources of mediation procedures were party-developed
rules (34%), rules of the court (27%) and the AASA mediation rules
(20%).

Although the abovementioned guidelines advise the mediator to
consult with the parties on the procedure, the respondents did not
consider the parties’ input into the process to be of much impor-
tance. The results showed that the disputants have a substantial
(≥4 of 5 rating) input into the determination of the procedure in
only 16 (25%) of the 63 cases, while in 28 (44%) of the cases their
input was limited (≤ 2 of 5 rating).

Acta Structilia 2006:13(1)

4.3.6 General
Responses elicited on the attitudes and perceptions of the respon-
dents regarding the importance of different aspects of the medi-
ation process on the outcome of the mediation showed that, al-
though the respondents rated the parties’ willingness to participate
in the mediation process and to reach a consensual settlement as
important to the outcome of the mediation, they did not rate the
parties understanding of the nature of the process as highly, nor
did they rate the parties control of the process and its outcome as
important. Instead the respondents were almost unanimous in their
opinion that the mediator’s expertise and authority on the matter
of the dispute played the most important role in determining the
outcome of the mediation process, while the mediator’s expertise
in the mediation process was of lesser importance.

These attitudes corresponded to the respondents’ attitudes re-
garding the parties’ degree of input into the determination of the
mediation procedure, where it was found that 45 of the 63 respond-
ents (71%) rated this input to be ≤ 3 (a fair amount to not much).

In the majority (81%) of the cases, the parties did not make use of
witnesses, while only 20% of the mediators sought outside advice.

4.3.7 The role of the mediator
Of the four roles suggested to the respondents, persuading the par-
ties that the mediator’s proposed settlement was fair, reasonable
and in everyone’s best interests was cited most frequently (32%)
by the respondents as being the role of the mediator; persuading
the parties that the mediator’s opinion of the outcome would be
within the range of a likely court/arbitration ruling was considered
28% of the time; with facilitating constructive dialogue between
the parties and encouraging the parties to negotiate their own
settlement cited 21% of the time. Considering the information and
evidence gathered and giving a decision based thereon, for or
against the claimant, was cited less frequently (18%) as the role of
the mediator.

The surveyed data on the perceived role of the mediator was ana-
lysed from three different perspectives. Firstly, according to the
role that technical experience and expertise played in the process.
This being the case, evaluation of the dispute based on subject
expertise was considered 79% of the time, with facilitative skills being

Povey, Cattell & Michell • Mediation practice

the determining factor in the remaining 12% counts. Secondly, ac-
cording to the mediator’s actions in moving the parties towards
settlement. This being the case, persuasion was considered 60% of
the time, facilitating discussion, 21% and decision-making, 18% of
the time. Thirdly, according to the mediator’s approach to the par-
ties’ interests and rights. This being the case, interest-based ap-
proaches were considered 53% of the time, and rights-based ap-
proaches, 47% of the time.

The above results reflected the differences in the views and opinions
of the respondents on the mediator’s role, showing a reasonable di-
versity in the perception of the mediator’s role. However, it could
generally be said that of the different roles of the mediator indi-
cated, the evaluative approach appeared to dominate the facili-
tative approach. This proposition was supported by the analysis of
the functions the respondents considered to be important.

4.3.8 The functions of the mediator
Analysis of the perceived importance of ten suggested functions of
the mediator indicated that the respondents considered evaluative
mediator-orientated functions to be of more importance than party-
orientated or process-orientated functions.

By grouping the functions according to the rating each function
received from the majority (75%) of respondents, two distinct group-
ings were observed. The first group of functions all rated as sub-
stantially (4) to very important (5), by the majority, were:

• The development and preservation of the trust and con-
fidence of the parties;

• Evaluating the dispute and giving a reasoned opinion or
decision;

• The creation of an environment conducive to discussion
and co-operation at meetings; and

• Assisting the parties in identifying common ground and
isolating the really contentious issues.

Acta Structilia 2006:13(1)

The second group of functions, rated as fairly (3) to very important
(5), by the majority, were:

• Educating the parties as to the mediation process;

• Facilitating face-to-face discussions between the parties;

• Assisting the parties in analysing and prioritising the issues,
then designing an appropriate plan of action;

• Encouraging the parties to reflect on the consequences of
their not settling the dispute themselves;

• Promoting constructive communication and active listen-
ing; and

• Encouraging the parties to explore possible solutions and
settlement proposals.

In analysing the results pertaining to the function of the mediator,
it is interesting to note that seventy five percent (75%) of the respond-
ents perceived the development and preservation of the trust and
confidence of the parties in the mediators’ role to be very import-
ant. Furthermore, sixty-one percent (61%) of the respondents’ per-
ceived the evaluation of the dispute and giving a reasoned opinion
and decision as very important. Lastly, educating the parties as to
the mediation process was generally not considered as important
as the other functions with only 40% of the respondents rating this
function as substantially to very important.

4.3.9 The skills and techniques of the mediator
Although the majority of the respondents agreed that the mediator
should possess skills specific to the mediation process and different
to those required by an arbitrator or adjudicator, the research in-
dicated that the respondents did not often use specific mediation
skills and techniques, but relied mostly on their communication skills.
The respondents also relied on the authority of their positions and
personal attributes and attitudes in order to develop trust and con-
fidence of the parties. Communication techniques were used to
gather information (careful reading and listening) while negotiation
techniques were limited to promoting reality by predicting out-
comes and assessing the strengths and weakness of the parties’
case with a view to proposing a settlement.

Povey, Cattell & Michell • Mediation practice

Generally the respondents considered ‘subject-matter expertise’
to be more important than expertise in the mediation process, thus
emphasising their evaluative approach to mediation.

4.3.10 Frequency of settlement of disputes using mediation
Sixty two percent (62%) of the respondents reported that disputes
were settled by mediation in more than 80% of the cases, that is,
final resolution of the dispute was achieved without going to arbi-
tration or litigation. For 32% of the respondents, the process of
mediation has been 100% successful, while a further 30% reported
a success rate of more than 80%.

5. Conclusions
The research established that the mediators do not generally assist
the parties with determining their own settlement; instead the
mediation activities centre mainly on the mediator’s collection of
information on the dispute and the formulation of a solution by the
mediator. The research showed that the mediators’ knowledge and
utilisation of specific mediation process skills and techniques were
limited.

Mediation is aimed at assisting disputing parties in reaching agree-
ment and so settling a dispute, finally and conclusively, in order to
avoid the cost, time and generation of adversarial attitudes and
effects, inherent in arbitration and litigation. These objectives are
said to be attainable by virtue of the philosophy underlying the
process of mediation, namely that an agreement reached between
two disputing parties, where the parties believe such agreement is
in everyone’s best interest, is a lasting agreement that has the effect
of preserving amicable and long-lasting relationships. It is therefore
important that an agreement is not imposed on the parties but
instead that the parties are skilfully led through a delicate process
of perceptual changes and understanding to such an agreement.
It is under such circumstances that mediation has the potential to
result in a final and conclusive settlement of a dispute.

It is also this feature of obtaining finality of settlement of a dispute
inherent in the philosophy of mediation that distinguishes it from
other ADR processes such as contractual adjudication. Although
the two processes are similar in overall purpose and procedure,
mediation is clearly intended to be a means of obtaining final and

Acta Structilia 2006:13(1)

Povey, Cattell & Michell • Mediation practice

conclusive disposal of disputes while adjudication decisions are
interim and reviewable through arbitration or litigation.

In an industry, considered by some to be in crisis, where conflict and
dispute are regular and common occurrences, every effort should
be made to reduce the levels of conflict and dispute or at least
settle disputes effectively. As the South African construction industry,
despite the enormous contribution it makes to the South African
economy, is made up of a relatively small number of interdependent
role players, the maintenance of good relationships between these
different role players (clients, contractors, suppliers and profes-
sionals) is vital to the efficiency and sustainability of the industry.
The settlement of disputes by mediation, practiced in accordance
with the principles and objectives that underpin the process, has
a major role to play in improving the climate of the industry and
promoting its sustainability. If this paper were to make a recom-
mendation, it would be that whatever deficiencies have resulted
in the practice of mediation having deviated from the generally
accepted definition thereof, should be remedied by more atten-
tion being placed thereon in the initial education of construction
professionals and through Continuing Professional Development.

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