The best ways to re­solve a dis­pute

Kapi-Mana News - - OPINION/NEWS -

D asks what the dif­fer­ences are be­tween me­di­a­tion, ar­bi­tra­tion and ne­go­ti­a­tion.

All three are types of ‘‘al­ter­na­tive dis­pute res­o­lu­tion (‘‘ADR’’).

ADR has be­come pop­u­lar as an al­ter­na­tive to the courts as a means of re­solv­ing dis­putes in a pri­vate way.

Me­di­a­tion in­volves an in­de­pen­dent me­di­a­tor. They do not make de­ci­sions on the case, but as­sist the par­ties to reach a res­o­lu­tion if pos­si­ble. Me­di­a­tors try to find ar­eas of agree­ment so both sides can work on achiev­ing an agreed out­come.

No one can be forced to ac­cept any par­tic­u­lar out­come in me­di­a­tion, so an agreed out­come has to have some­thing for ev­ery­one in­volved.

Out­comes can in­volve things that a court can­not or­der such as an apol­ogy or ref­er­ence.

Ne­go­ti­a­tion is done di­rectly be­tween the par­ties and any rep­re­sen­ta­tives or lawyers with­out the as­sis­tance of an out­side per­son.

It also re­lies on agree­ment be­tween the par­ties.

Ne­go­ti­a­tions can oc­cur in con­junc­tion with a me­di­a­tion, ar­bi­tra­tion or court process and of­ten run in par­al­lel.

Ar­bi­tra­tion in­volves an out­side per­son be­ing given the power to make a bind­ing de­ci­sion on the is­sue.

The ar­bi­tra­tor acts more like a judge, hear­ing ev­i­dence and mak­ing a rul­ing.

Ar­bi­tra­tion can be quicker and cheaper than court pro­ceed­ings and the process and out­come re­main con­fi­den­tial.

Court hear­ings are mostly open to the pub­lic and me­dia so con­fi­den­tial­ity is usu­ally not pos­si­ble.

Ar­bi­tra­tion can be good if the par­ties have an on­go­ing re­la­tion­ship, but need to have a quick de­ci­sion on a point of dis­pute and then move on.

G writes about her prob­lems with a sewing ma­chine that has failed af­ter only eight years of mod­er­ate use. The re­tailer and man­u­fac­turer have re­fused to hon­our their obli­ga­tions, cit­ing a one-year war­ranty.

The re­tailer has obli­ga­tions un­der the Con­sumer Guar­an­tees Act to fix, re­place or re­fund goods that are not fit for pur­pose. A good-qual­ity ma­chine should last longer than eight years, so G should chase up the re­tailer to meet their obli­ga­tions.

If they will not fix the ma­chine, she can bring a claim in the Dis­putes Tri­bunal to en­force her rights.

N asks about prob­lems with Ki­wisaver for an es­tate.

Ki­wisaver funds are dealt with the same as other as­sets. They will be trans­ferred into the pool of as­sets of your es­tate. If you have as­sets of more than $15,000, your ex­ecu­tor will have to ap­ply to the High Court for pro­bate of your will.

This is the same even if the funds were in a bank ac­count. To as­sist your ex­ecu­tors, it helps to leave de­tails of your Ki­wisaver scheme so they know whom to con­tact.

Col­umn cour­tesy of Rainey Collins Lawyers, ph 0800 733484. If you have a le­gal in­quiry, email Alan on aknowsley@rain­ey­collins.co.nz.

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