Adjudication and Aristotelian Justice
Denise Evans considers the true meaning of justice and its role in the adjudication process.
Adjudication is a growing form of dispute resolution, often created by legislation for a specific type of dispute. In some sectors, the legislation specifies what the adjudicator must have regard for when making a decision. Adjudicators must understand the environment in which they are working and if they work in more than one environment, recognise that the considerations may be different for each environment.
FairWay Resolution Limited is the administrator of the International Student Contract Dispute Resolution Service (DRS). The DRS is branded as iStudent Complaints and has been in operation since the 1 July 2016. There have been several cases through the DRS, many of which have resolved through negotiation and mediation. A small number have been determined through adjudication.
An adjudicator is required to act in accordance with what is fair and reasonable, have regard to the law, the relevant good practice, the code, and other Government policies. The adjudicator is not bound by either the rules of evidence or previous decisions, and is required to determine the dispute according to the substantial merits and justice of the case. In doing so, the adjudicator is not bound to give effect to strict legal obligations or to legal forms or technicalities. The decision of the adjudicator is binding on all parties once notice of the decision has been given in writing. The decision is final and there is no right of appeal. Any party and the DRS may apply to the District Court for orders to give effect to any decision and the District Court may modify a decision if the Court thinks that its terms are manifestly unreasonable, before giving effect to it.
In introducing the new Code of Practice, the then Minister of Tertiary Education, Skills and Employment Steven Joyce said “the new Code of Practice will further strengthen providers’ responsibilities for the recruitment of international students, and the care of them while they are in the country.
The DRS scheme is required therefore to ensure that decisions are made which support the care of International Students in New Zealand.
Aristotle said that justice consists of what is lawful and fair, with fairness involving equitable distributions and the correction of what is inequitable. This definition suggests that giving effect to justice may require unequal treatment of the parties.
Recently the internationally acclaimed Director of the Centre for Dispute Resolution in Southern California and former Judge Ken Cloke said;
“Aristotle defined justice as ‘due proportion’. He said that in a sense justice is someone else’s self-interest. But the truth is it’s a combination of our self-interest and someone else’s. So, what makes a just outcome “just” is that it doesn’t settle the conflicts alone through some form of compromise, but actually resolves the underlying reasons for the conflict. And that’s a significant shift in the way that we think about justice and in order for that to happen, Aristotle is right – we have to take into account the other person’s self-interest. Unfortunately, the law as a process consists basically of deciding which of two truths is the correct one. If there is only a single truth, then the law is going to be successful in resolving that dispute. But if it turns out that that there are two truths, then trying to decide which one of them is the single truth is going to destroy the complexity of the problem. The only way that you get a resolution then is by finding a creative combination of those two truths that hopefully turns it into something higher.”
iStudent Complaints Process
The opportunity for finding a creative combination of two truths is created by the mediation/adjudication approach of the DRS. When an international student lodges a complaint with the DRS, the student is encouraged to try and resolve the dispute using their Education Providers dispute resolution process. If the dispute is not resolved, then the DRS will assist the student to negotiate with the Education Provider before referring the case to a Dispute Resolution Practitioner (“DRP”) who is appointed to complete both the mediation and adjudication processes provided in the Code.
First, the Dispute Resolution Practitioner will meet with the parties to explain the process and explore the issues which have arisen. In this phase, there is a focus on the exchange of information and creation of possibilities for the resolution of the dispute.
If no agreement is reached then the parties are given the opportunity to provide further information and make submission to the Dispute Resolution Practitioner. The Dispute Resolution Practitioner gives notice to the parties of their proposed decision. The parties then have a further opportunity to comment on the proposed decision before the decision is finalised by the Dispute Resolution Practitioner. This process allows the parties many opportunities to consider the other party’s perspective and the Dispute Resolution Practitioner encourages the parties to resolve the dispute, sometimes even after an adjudicated decision has been made.
The DRS provides a great deal of assistance to the international student during the process, making sure that the student has support as well as access to interpreting services if required. The focus is on “making sense” of what has happened for the student. In most instances, the Education Providers have been very careful to ensure that good information is available for the student and are also committed to finding a solution. It may appear to some Education Providers that the DRS favours the student and that is because to ensure justice, the DRS must have processes which allow for the impact of perceived power imbalances which favour the Education Provider to be neutralised.
The fact that there have been relatively few adjudicated decisions is testament to the good work done by the Dispute Resolution Practitioners who work in the service to get an agreement between the parties wherever that is possible. It is the aim of the DRS that any agreement reached will be based on the creative combination of the truths told by student and the Education Provider so that at the end of any case, both parties will have more understanding of each other and the integrity of education provided by New Zealand for International Students is enhanced.
Denise Evans is Client Director of iStudent Complaints. She is an experienced lawyer, mediator and arbitrator with over thirty years’ experience in the industry. Denise is passionate about finding the right option to help people resolve disputes while recognising individual needs.
To find out more about adjudication visit www.FairWayResolution.com
To find out more about iStudent Complaints visit www.iStudent.org.nz
 Rule 9 International Student Contract Dispute Resolution Scheme Rules 2016
 Press release 1 July 2016
 www.dailygood.org/.../ken-cloke-there-is-no-them-there-is-just-us-awakin-call-editors...Ken Cloke: There Is No Them. There Is Just Us.--by Awakin Call Editors, Nov 27, 2017