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Alternative Dispute Resolution (ADR) Traditionally, litigation was often the only dispute resolution procedure available to parties to a dispute. It is however an expensive and time consuming process. Because of this trend alternative dispute resolution (ADR) processes have been developed and ADR has become an increasingly popular method of resolving disputes. The main attraction to these processes is that they provide parties with a greater freedom to set their own rules and at the same time limit interference by the Courts with the process and the outcome. The most common alternative dispute resolution processes are, negotiation, mediation and arbitration. Common features of these processes are that disputes are resolved confidentially, more quickly and cost effectively. Material differences between the arbitration and mediation could be summarised as follows: Arbitration 1. Structured process 2. Timetable controlled by the parties. 3. Costs may be less than litigation. 4. Can achieve a quick result. 5. Is confidential. 6. The decision is binding and enforceable. 7. The process is controlled by an arbitrator. Arbitration gives the parties an opportunity to appoint a specialist arbitrator of their own choice, defines the limits of judicial review, provides for the powers of the arbitrator and facilitates the recognition and enforcement of arbitration agreements and awards. The disadvantages are that the parties do not have control over the outcome, a decision is imposed on them and an ongoing relationship may be jeopardised. Arbitration is governed by the Arbitration Act 1996 and applies to all arbitrations, which have their place of arbitration in New Zealand. Mediation Mediation is a less formal process and involves a mediator appointed by the parties exploring with the parties how the dispute may be resolved. Skilled mediators can find common ground, isolate issues and suggest creative solutions. 1. Structure 2. Control and resolution by the parties. 3. Most cost effective ADR process 4. Is confidential 5. Quick resolution. The disadvantage of mediation is that the dispute can only be resolved by agreement between the parties. A mediator cannot impose a decision. It is by far the most popular ADR process. It is informal and to succeed parties should enter the process in good faith and with an intention to achieve resolution of the dispute. Resolution does not depend on findings of fact or credibility and is usually made on the basis that it is confidential and without admission of liability. It is important that the mediator/arbitrator that the parties agree to, is qualified, skilled and has a good understanding of the law and the industry that the dispute relates to. As is the case in all disputes, parties are encouraged to consider implications of time, cost, loss of income and opportunity, emotional energy, stress and ongoing relationships. Disputes Tribunal Disputes Tribunals are not like formal Courts. There are no lawyers or judges. Hearings are private and informal and members of the public and press are not allowed in the hearing room. The process is inexpensive and quick. Disputes are heard by a referee whose decision is binding and can be enforced by the Courts. The Tribunal can deal with many disputes, but cannot be used for debt collecting, disputes about parenting or care of children, matrimonial property, disputes about wills or about ownership of land, the value of goodwill or intellectual property disputes. The dispute could be in respect of an amount up to $7,500.00 or if all parties agree, up to $12,000.00. If the dispute involves an amount in excess of these amounts and you wish the Disputes Tribunal to deal with it, you would have to abandon a portion of the amount you are claiming to bring it within the jurisdiction of the Tribunal. A Disputes Tribunal is as close to you as your nearest District Court. Although you will have to pay a filing fee, because there are no lawyers involved there are no additional costs. It is, however, important to prepare properly for the hearing and to bring any letters, invoices, receipts, photographs, quotes or contracts, which will assist you with your case. Your presence is required, as you have to represent yourself. You may bring a support person with the permission of the Tribunal. However, the support person is not entitled to say anything at the hearing, unless asked to do so by the referee. At the hearing, the referee will encourage both parties to discuss the dispute and pursue ways in which the dispute might be settled. Only if agreement cannot be reached, the referee will make decision for which they are required to give either oral or written reasons. The Tribunal may allow someone to represent you, if you have a disability, which makes it difficult for you to present your case. At the end of the hearing, you may apply for a rehearing or appeal against the decision if you have good reasons and evidence to support your application. These applications have to be made within 28 days of the Tribunal order being made and will be considered by a District Court Judge. If a party to a dispute does not comply with a Tribunal order, application may be made to the Tribunal to have the ordered enforced by the Collections Unit of the local District Court. Any additional costs to enforce the Tribunal order are added to the total debt owed.
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