Constructing a home or business premises is a complex process involving many disciplines and trades, frequently resulting in misunderstanding and conflict.
A typical construction project can require at least three professionals, in addition to town planning and building inspectors, as well as a minimum of ten trades, not counting material suppliers. Given the complexities, disputes are common and need prompt resolution.
There are four main legal options for addressing conflicts that arise: mediation, adjudication, arbitration and court litigation.
Among these, professional mediation stands out as the most effective and economical choice for resolving disagreements quickly. Mediation relies on compromise and often uncovers common ground between disputing parties, allowing for swift and amicable resolutions. Mediation works – or fails – on the basis of sensible compromise. However, it is essential to note that mediation is not legally binding and depends on mutual agreement.
If mediation fails, parties can turn to adjudication, which involves hiring an impartial professional to evaluate evidence and make recommendations. Although adjudication typically costs more than mediation, the fees are shared equally between the parties, and the recommendations are not legally binding.
The next level of dispute resolution is arbitration, which involves lawyers and technical experts, resulting in high costs and lengthy processes. Arbitration decisions are legally binding but can take months or even years to reach, leaving little benefit for the parties involved.
Finally, litigation is the most expensive and time-consuming option, often taking years due to court backlogs. Many formal building contracts include a “dispute resolution” clause favouring arbitration, but parties can opt for mediation or adjudication instead.
In summary, mediation remains the quickest and least costly way to resolve construction-related disputes.
Ballito resident Ken Lever is an architect and designer with 50 years’ experience working in South Africa, Zimbabwe, the UK, Mozambique and New Guinea.
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