Court is of­ten the last re­sort

Kapi-Mana News - - FRONT PAGE - ALAN KNOWSLEY LE­GAL MAT­TERS

Un­der the var­i­ous court rules, the process of re­solv­ing dis­putes is fo­cused on set­tling dis­putes by al­ter­na­tive dis­pute res­o­lu­tion (ADR) rather than through court lit­i­ga­tion. ADR is now some­times called as­sisted dis­pute res­o­lu­tion and it is not seen as ‘‘al­ter­na­tive’’ any more but part of the main stream.

Par­ties are obliged to un­der­take al­ter­na­tive dis­pute res­o­lu­tion meth­ods to re­solve their dis­pute, with the op­tion of court pro­ceed­ings be­ing the last re­sort.

Here are some com­mon forms of al­ter­na­tive dis­pute res­o­lu­tion:

Ar­bi­tra­tion

An ar­bi­tra­tion clause is of­ten in­cluded in com­mer­cial con­tracts as a way to ad­dress any prob­lems that may arise in the fu­ture.

The par­ties can de­cide on the ar­bi­tra­tion process, but, apart from pre­sen­ta­tion of ev­i­dence and mak­ing sub­mis­sions, have no con­trol over the out­come.

An ar­bi­tra­tor or panel of ar­bi­tra­tors makes a bind­ing de­ci­sion.

The award made is bind­ing on all par­ties and is en­force­able as a judg­ment of the court.

The par­ties have to pay the ar­bi­tra­tor, but the ad­van­tage is usu­ally spe­cialised knowl­edge in a spe­cific area.

Lawyers are usu­ally in­volved in the process.

Ar­bi­tra­tion may of­fer a more cost-ef­fec­tive method of re­solv­ing dis­putes than court lit­i­ga­tion. Ar­bi­tra­tions are not open to the public so they of­fer the ad­van­tage of pri­vacy.

They can also be quicker than court pro­ceed­ings be­cause of lim­its on avail­able court time.

Me­di­a­tion

Me­di­a­tion is where an in­de­pen­dent third party as­sists the par­ties in­volved in a dis­pute to achieve a mu­tu­ally ac­cept­able res­o­lu­tion.

Me­di­a­tion is in­cluded in a num­ber of leg­isla­tive dis­pute res­o­lu­tion pro­cesses, for in­stance in the ar­eas of Em­ploy­ment Law and Fam­ily Law, Res­i­den­tial Ten­an­cies and Re­source Man­age­ment.

Par­ties in a me­di­a­tion are free to agree on how some of the is­sues can be re­solved.

If there are mul­ti­ple is­sues, par­ties may agree to dis­pose of some is­sues but not oth­ers, and de­ci­sions can be made as to how dis­putes will be han­dled be­tween the par­ties in the fu­ture.

The Em­ploy­ment Me­di­a­tion Ser­vice is pro­vided free of cost. The par­ties still pay for their own

‘‘Me­di­a­tions pro­vide a faster and less ex­pen­sive way to solve prob­lems and are not open to the public.’’

le­gal rep­re­sen­ta­tion.

How­ever, if a pri­vate me­di­a­tor is used they will be paid by the par­ties.

Me­di­a­tions pro­vide a faster and less ex­pen­sive way to solve prob­lems and are not open to the public.

They can also pro­vide more reme­dies for re­solv­ing a dis­pute as the par­ties may agree on reme­dies that are not pos­si­ble from a Court-or­dered out­come.

Me­di­a­tions can of­ten be ar­ranged very quickly so they are much faster than court pro­ceed­ings.

Also, me­di­a­tions are con­fi­den­tial and of­fer pri­vacy to the par­ties, both at the me­di­a­tion and in the out­come.

In a fur­ther col­umn I will cover ne­go­ti­a­tions, set­tle­ment con­fer­ences and tri­bunals.

Col­umn cour­tesy of Rainey Collins Lawyers - phone 0800 733 484 or go to www.rain­ey­collins.co.nz.

If you have a le­gal in­quiry you would like dis­cussed in this col­umn please email Alan on aknowsley@rain­ey­collins.co.nz.

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