Court is often the last resort
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:
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 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.’’
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 firstname.lastname@example.org.