Norm Ely Consulting

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Dispute Resolution
Mediation — Arbitration — Facilitation — Small disputes

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Dispute Resolution

Mediation – Arbitration – Facilitation - Small Disputes

Dispute Resolution is a collective term for procedures for resolving disputes that are distinguishable from the Court-based process of:

Litigation, where a judge or jury makes a decision based on representations made by the parties or their lawyers.

Dispute Resolution procedures have the advantage that they are confidential and can be tailored to suit the particular needs of the dispute and the parties.

Negotiation

The simplest way to sort out problems for the parties is to negotiate a satisfactory solution. Negotiation may or may not settle or resolve the dispute, but it should be the first step taken towards achieving a resolution.

Mediation

Mediation is a non-binding and voluntary dispute resolution process in which an independent and impartial mediator facilitates negotiation between the parties to assist them to resolve their dispute. Mediation differs significantly from arbitration and litigation in that neither the parties nor the mediator are limited by what is legally "right"; or by any rules of evidence. The mediator's role is to guide the process so that the issues can be defined, the relevant information produced and options explored without undue delay or legalistic procedures.

When a dispute is resolved by mediation a written agreement is signed by the parties. This agreement sets out the outcome of the issues that have been resolved at the mediation.

Arbitration

Arbitration is a process for the settlement of disputes where an independent and neutral arbitrator makes a decision settling the dispute after considering the representations of the parties. The arbitrator's decision is called an "award" and it is final and binding on the parties. The award is written and signed by the arbitrator and is enforceable by the courts. The Arbitration Act 1996 contains statutory provisions that relate to arbitration.

Expert Determination

Expert determination is where an expert is instructed by the parties to investigate and use his or her own expertise to determine the issues in dispute. The expert may make a determination with or without submissions by the parties and acts within the terms of reference.

Types of Dispute

There are a wide range of possible disputes for which any of the above is a suitable process to assist in resolving such dispute. Some examples are:

International: multinationals against each other, importers vs. exporters, people against government.

Constitutional: administrative problems, decisions by officials relating to tax, benefits, immigration.

Organisational: management disputes, pay structures, personal grievances, intra-organisational disputes.

Corporate: disputes between shareholders, liquidation and receivership problems.

Commercial: contract, tort, joint ventures, partnerships, banking, insurance, shipping, commodities, construction, intellectual property.

Consumer: between consumer and supplier.

Property: landlord and tenant, buyers and sellers, boundary disputes.

Family: separation and matrimonial property, married partners and de facto, inheritance, testamentary promises.

Trusts: beneficiaries and trustees.

Neighbourhood: gender, race, social and property and environmental issues.

Interpersonal disputes.

Treaty of Waitangi.

Private Mediation vs. Legislated Mediation

There are two common types of mediation - what I have termed as legislated or what I have termed as private.
In private mediation the individuals choose the process. Whereas in legislated mediation there is an option in law or quasi law to mediate which, whilst voluntary, is hard not to have to pursue prior to a formal hearing if the mediation is unsatisfactory e.g. Tenancy or Employment services. These have benefits and negatives. Below is a summation that would apply in the employment situation:

EMPLOYMENT DISPUTES MEDIATION COMPARISON

EMPLOYMENT TRIBUNAL MEDIATION vs PRIVATE EMPLOYMENT MEDIATION

Employment Tribunal Processes	Private mediation
Remains voluntary, although there is pressure on parties to mediate by way of subtle suggestion.	Voluntary, no ability to insist that the parties attend.
No extra costs other than filing fees.	Must bear the cost of the mediation.
Expertise and experience, knowledge of the likely outcome at trial used as a lever.	Can have expertise, but leverage limited.
High chance of settlement.	High chance of settlement.
May be well-suited to employment or divorce cases, with no on going relationship.	Chance of restoring the relationship if in early enough.
Standard procedure implied into all contracts unless effective alternative.	Only available by consent or by effective alternative clause [not easy to establish effective alternative].
Formal binding solution with no appeal against the decision.	Can become an effective solution but further work required, such as binding legal deed of settlement.
Slow, can take up to 8 months [opportunity of reinstatement is lost].	Immediate but has the potential to take longer.
Reactive after grievance, although a procedure for pre-emptive response not used often.	Proactive, can be used before dismissal.
Does not address the underlying issues, & structure.	Can deal with the underlying issues but depends on style.
Some risk of patterning, similar cases, same result.	Should be able to accommodate different issues, but depends on style, individualises options.
Shuttle process may mean it is difficult for parties to jointly develop options and may make less likely to stick by agreements.	Solutions generated together.

Dispute resolution Options

As can be seen at the start of this summation there are a number of forms of Dispute Resolution. Each of these options has benefits and negatives when compared to each other. It is important that the most beneficial type of Dispute Resolution Service is chosen at the start of the attempt to resolve the dispute. Below is a summation of those options:

DISPUTE RESOLUTION OPTIONS: Some Characteristics

Characteristic	Mediation	Mini-Trial	Arbitration	Court Adjudication
Participation	Voluntary.	Voluntary.	Voluntary - but may be mandated under contract.	Compulsory once initiated.
Control over Inputs/Definitions of Dispute	Parties control inputs. Focus on parties' perceptions and concerns.	Parties and their legal advisers control inputs.	Tends to be legalistic.	Dispute may be framed to fit legally recognised cause of action. Lawyers have a large measure of control over presentation of argument.
Procedure	Flexible. Parties can tailor procedures to suit dispute. No discovery.	Flexible. Procedure can be adapted for particular dispute. Usually invokes some discovery.	Varies with context, but tends to be formal. Rules of evidence apply unless parties otherwise agree.	Dispute must be framed.
Publicity/Privacy	Private. Confidentiality of sensitive information can be protected.	Private.	Private.	Public.
Control over outcome	Parties control decision making.	Parties control decision making.	Arbitrator decides.	Judge decides.
Nature of Solutions	All gain. Tends to preserve or restore relationships. Takes account of commercial as well as legal concerns.	All gain. May preserve or restore relationships. Can take account of both commercial and legal concerns.	Win-lose. Focus on which side will prevail.	Win-lose. Tends to polarise parties. Focus is on legal issues. Establishes a binding precedent.
Speed	Parties control timing.	Parties control timing.	Can be speedy - unless procedures or award are challenged in court proceedings.	Slow.
Cost	Usually significantly less expensive than litigation - from 10% to 50% cost of trial.	Significant cost savings compared with litigation.	Varies. In complex cases, may be as or more expensive than litigation.	Expensive.

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Your next step

If you and the other party(ies) wish to resolve the dispute by using a dispute resolution process then your next course of action should be:

To decide what method of Dispute Resolution is suitable to you
To choose a suitable person(s) to assist you in resolving the dispute, this will be subject to the person(s) agreeing to assist you
To discuss contractual terms with the person(s) you choose to assist you. It is very important that you have a contract with the person(s) assisting you. This contract, (Agreement to Mediate), should provide the basis of the work to be carried out on behalf of the disputes.
In some cases one party may be unwilling to use any process. In this case it is often worthwhile to have a third person approach the other party to discuss the relevant options open to them. This often takes the "heat" out of the issue and allows for some space to manoeuvre.

A sample "Agreement to Mediate" of mine can be downloaded for your perusal.

If you wish to use some other form of Dispute Resolution please contact me at one of the addresses above or click on my e-mail below. I will contact you to provide you with Agreements and other necessary documents more suited to the form of Dispute Resolution you wish to use.

If you have any questions or would like me to contact you please e-mail me at nely@xtra.net.nz

DISCLAIMER

These materials are intended to provide a simple outline of procedures for various forms of Dispute Resolution Processes and as such are not intended to be, and do not attempt to be, comprehensive, nor to be a substitute for legal advice. All parties must rely exclusively on their own skill, knowledge and judgment when making use of this document and in any doubt about the law and practice of any particular dispute resolution process parties should obtain independent advice or assistance from a lawyer or other suitably qualified person. I do not assume liability to anyone for any loss or damage caused by any error or omission whether such error or omission is the result or negligence or any other cause. Any and all such liability is disclaimed.

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