Le Règlement amiable des différends en matière de projets de construction: Quelques expériences pratiques

Abstract

The amicable settlement of disputes is in fact a ?management tool? to be set in motion for preventing potential disagreements and subsequently for solving differences and disputes before litigation or arbitration. As a consequence, any contract should have relevant provisions for a clear understanding of how this management tool must be implemented. Unfortunately it is frequently not the case: the parties seem to be satisfied with a mere contractual reference to the principle of an amicable settlement without going to the next step, which is to select the appropriate tool and, more important, to agree on the assistance of a third party (the ?Neutral?) for using the tool. The present article gives an overview of some personal experiences regarding the amicable settlement of disputes related to construction projects. These examples demonstrate that each settlement procedure has its own characteristics and that it is difficult to make generalizations. Nevertheless, they confirm the advantage to get involved a third party ready to ?jump in the matter? and to be creative on the basis of a complete understanding of the ?true reason? of the dispute, which can be sometimes purely emotional. Even when a party more or less reluctant to enter into the amicable settlement proceedings refuses to subsequently submit formal referral to the third party, the presence of the latter institutes a climate of confidence among the parties, in which direct negotiations can take place in the shadow.The best way leading to the successful settlement of a dispute is to rely on a flexible framework allowing the parties to select the most appropriate procedure in cooperation with the third party. It is therefore recommended to make compulsory the first meeting between the parties and the Neutral before one of the parties can notify its decision to terminate the proceedings. Such provision, among others, is part of the new ICC ADR Rules.