Dispute Resolution

Dispute Resolution

1. Not all cases go to court. There are specific lawyers trained for mediation

2. Arbitration privatises a court situation, and will reach a legal judgement binding to both parties

3. Litigation (Judicial)

   • process
     • File a statement of claim
       • Defendant files a statement of defence
         • 5-6 weeks
         • Discovery
           • Disclosure of relevant documents to the other side
           • Attend a case management conference
             • Case for hearing is set
               • Usually a long time away
               • Go to court, Each side tries to prove case
                 • Judge's decision/ Can reserve decision for later
                   • Court Orders
                     • Can Appeal
                     • Lawyer's fees plus court fees
   • A formalised adversarial process leading towards the decision of the Judicial officer
     • This was the default method for D.R in NZ for ages
       • This is why negotaition, mediation are alternative resolutions
   • Advantages
     • Litigation can look beyond the immediate dispute
       • Sets a precedent that makes future disputes less likely
         • e.g. If you have a dispute in understanding of law, a precedent can make a robust statement that you cannot misinterpret the law anymore
     • Binding Decisions
       • A Big deal
       • You can't force people to go to Mediation and negotiation but you can make them come to your case
       • You can get a court bail if they don't pay
       • The court has powerful tools to get what you want if you win
     • Power Imbalance Protection
       • A judge can portect parties
       • BUT more capable lawyers make a huge difference
       • Judges often help outmmatched litigates though
     • Public enunciation of values
       • It is public, it is set and done
       • Sort of tied to precedent
       • Society knows what is going on and can take account of the future
       • It does a public service
   • Disadvantages
     • Cost
       • Really expensive
       • Any administrative costs etc. will be around 30k to file a case in High Court
     • Time
       • It can take years
     • Damage Relationships
       • Particularly an issue in NZ where businesses are close and people know each other
       • Litigation destroys relationships
     • Restricted scope of remedies
       • It can usually only give you money, not always what you want

4. Methods of Dispute Resolution

   • Judicial (Adversarial and Inquisitorial)
     • The decision of the court is binding and can be appealed.
     • In NZ very few juries oversee civil disputes
     • Judges is an Inquisitorial role will try to find the nature of evidence himself
   • Non-Judicial (Negotiation and Mediation)
     • This process is not adversarial and may be pushing towards a common goal
     • In mediation the two parties try to find an agreement that they are both happy with
       • But when they can't they bring in a mediator
         • The mediator doesn't make a decision but is there to clarify the issues and make sure the parties are talking about the issues that really matter to them

5. Negotiation

   • Process
     • Each side engages a lawyer
       • The lawyers send each other proposals
         • A deal is worked out
           • Legal fees
   • Lawyers negotiate all the time (e.g family disputes)
   • Govt. negotiates with Maori in the Treaty settlement process
   • Different types of negotiation
     • Competitive
       • Aggressive, refusal to compromise
     • Cooperative
       • Negotiation without a mediator, both parties take into accounts wants and needs of the other
     • Interest-Based
       • A mix of the other two
         • Helps to get to the real interests that are at issue and work to achieve them
   • Advantages
     • Time and Cost
     • Preserves relationships
     • Flexibility
       • More flexibility in what you end up with
       • Parties also have complete control over process and outcome
   • Disadvantages
     • Lack of public enunciation of community values
     • Risk of power imbalances
     • No independent third party so no safeguards
     • No guaranteed or binding final decision

6. Mediation

   • Process
     • Mediator's opening address
       • Parties' statements
         • Mediator's summary
           • Issue identifying and agenda setting
             • Private sessions if required
               • Development and evaluation of options
                 • Private sessions if required
                   • Conclusion/Agreement
   • Principles
     • Independent Third Party
       • AMINZ or LEADR
       • Assistance with no power to impose resolution
     • Different styles
       • Facilitative
         • Mediator facilitates an outcome, doesn't suggest a resolution
       • Evaluative
         • Evaluative role of mediator who provides specialist advice on the subject matter
       • Transformative
         • Changes parties' perception of the problem.
         • Therapeutic
         • Elements of this are seen in the Waitangi Tribunal Proceedings
   • A consensual process involving the assistance of a third party, which enables the other parties to explore issues of difference, or potential difference, in order to prevent or resolve those differences
     • Third Party involvement to resolve issues
     • Facilitating outcomes to solve problems
     • Helping parties reach an agreement
   • Mediation in NZ
     • Employment, Family, Tenancy, Leaky homes, COmmercial
   • Advantages
     • Time and Cost
     • Flexibility
     • Focus on future relationships
     • Cultural Feminism- nurturing, caring approach
   • Disadvantages
     • Innapropriate for certain areas of law
       • Some cases are not appropriate for lighter handling
     • Role of mediator: can impose views or bias
     • Private: Lack of procedural safeguards
     • Often not binding

7. Maori dispute resolution

   • Process
     • Submit dispute to resolution by Maori customary method
     • A hui is arranged at a marae
     • Disputants meet with a group of elders
     • Korero goes on late into the night/ No set time
     • Eventually consensus is reached
     • Different Iwi do things differently
     • Decisions are not binding
   • No formal recognition of an alternative form of dispute resolution based on Maori customary ways
   • Maori customary law has been recognised by the courts as relevant in the context of judicial dispute resolution
     • Takamore v Clarke [2012] NZSC 116
       • Supreme Court treated Tikanga Maori as something that had to be considered (burial customs) in the judgement
     • R v Mason [2012] 2 NZLR 696 [2013]
       • Crown held that cultural considerations were significant but not fully relevant
       • The law as written was applied but these aspects of Tikanga were considered
   • Maori legend about the start of creation to explain Maori perspective on the world, community and dispute resolution
   • Characteristics
     • Importance of Collective Identity
       • Whakapapa: Genealogy, Kinship lines
       • Whanaungatanga: Kin relationships, togetherness
         • Defines relationships, obligations and responsibilities of the parties
         • Maori society seen as a collective unit- everyone take responsibilities for addressing problems/ transgressions
         • Community takes disciplining role
         • Community will support parties and accept responsibility
       • Importance of Mana (authority) and Tapu (sacredness)
         • If mana was challenged hostilities could escalate
         • Rights and Responsibilities to maintain the mana (respected status of the group)
     • Marae as focal point
       • focal point for community functions
       • Rules and protocol of the marae prevail where the marae is the forum
       • May include Mihi, Whaikorero, Karakia + Use of Te Reo

8. Maori approaches to dispute resolution

   • Family group conferences
     • A meeting where a young person has committed an offence and so the family, the victim, youth workers look to find ways to make things right and help the child
     • Everyone is there to participate
     • There is no scheduled time, allowing them to take as much time as needed
     • Focus is on consensus
   • Restorative Criminal Justice Programmes
     • A new approach to dealing with wrongdoing
     • Reconciliation and whanau involvement
     • Collective involvement to address the harms and issues of the offence and how to make things right
   • Using principles of Tikanga to rehabilitate