Under the various Court rules, the process of resolving disputes is focussed on settling disputes by alternative dispute resolution rather than through court litigation.

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 that may be suitably used to reach a 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 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.

Negotiation

Negotiation is where parties, either themselves or represented by their lawyers, formally discuss matters of mutual concern and attempt to resolve the dispute that has arisen between them.

This method of resolving disputes is usually quicker and cheaper than going to Court and provides another potential way to resolve the dispute in private.

Judicial Settlement conferences

This is where the dispute has been lodged in Court.

A Judge will meet with both parties and their lawyers to attempt to get a resolution without the need for a full Court hearing. If the dispute is not settled the full hearing is then before a different Judge.

This type of process can also be in conjunction with a meeting of the experts for both parties to see if areas of agreement between the experts can be reached. That narrows down the dispute for the parties.

Tribunal Claims

There are various Tribunals that aim to resolve disputes between parties in a cost-effective and timely manner.  Specialist Tribunals available include the Tenancy Tribunal and Motor Vehicle Disputes Tribunal, that can hear claims of larger amounts than the non-specialist Disputes Tribunal, which can only hear claims up to $15,000 (or $20,000 with the consent of the parties).

These dispute resolution Tribunals are usually quicker and cheaper than litigation in Court but may be open to the public.  Lawyers can appear in the Tenancy Tribunal if the Tribunal considers the issues to be complicated, the dispute is over $6,000, or one of the parties is unable to present their case adequately.  The Tribunal may also allow legal representation if the parties agree. 

Lawyers are not allowed to appear in the Disputes Tribunal, or Motor Vehicle Disputes Tribunal (unless they are one of the parties or a witness).  Therefore, you will have to present your own case, but lawyers can assist you to prepare for the hearing by drafting briefs of evidence, assisting with questions to ask the witnesses etc.

If a party is unable to represent their case adequately (because of a disability, or due to age) a Tribunal may allow a lawyer, or other person, to assist that party at the hearing. 

Which alternative resolution method is best for your case will depend on the nature of the dispute, the amount involved, the remedies you seek and the complexity of the facts.

Jaenine Badenhorst
Senior Solicitor
Wellington