Go Hard on Process, Soft on People

Written by Denise Evans, Principal – Dispute Resolution

Resolving disputes is an essential part of living in society and is done best when the process is firm enough that it enables the difficult conversations to be had whilst taking care of the needs of the people. Therefore, we say go hard on process, soft on people. The hard on process part requires people to agree to participate or where agreement is not possible sets the framework and timetable for moving a dispute along to a conclusion.

Dispute resolution is usually set out in contracts which define the rights and obligations of the parties and settle the terms of the relationship between them. The purpose of setting out the dispute resolution process is to create certainty for parties on how they will manage any dispute that may arise during the life of the contract or on termination thereof. Most clauses have a structure which promotes negotiation and consensual dispute resolution where possible, and then determinative processes with varying degrees of complexity and cost with the end point being either litigation or arbitration.

Dispute resolution processes which are set out in statutes broadly fit into three categories: pre-emptive, redemptive and determinative. Pre-emptive dispute resolution includes processes such as family group conferencing in the Oranga Tamariki Act 1989 or the conferencing of experts often used in EPA hearings. Redemptive dispute resolution includes processes such as restorative justice conferencing under the Sentencing Act and determinative such as the adjudication processes in the International Students Complaint Resolution process, Sharemilking Agreement or Construction Contracts Act 2004.

Despite all these processes, how much serious attention do we give to dispute resolution which is not litigation? Why do we call all other forms of dispute resolution “alternative”? It is only alternative if it is considered through the English mono-cultural, common law lens.

Alternative Dispute Resolution – an emerging field?
People often speak of dispute resolution as though it is an emerging field – something that is beginning to grow in popularity. Yet, dispute resolution existed in traditional societies before there was any formal state systems or legal institutions.1 In early times, the dispute resolution person acted as a representative of the community and used moral judgment, advice and persuasion to bring the parties to settlement.2 It was not accompanied by written rules and codes of conduct – there was no system of mediator accreditation or training. Its strong oral tradition made it virtually invisible to colonising powers.3

Throughout the world there are examples of dispute resolution mechanisms which are laced with spirituality and tradition. For example, in the Inuit community disputes are resolved through song-duels where the parties to a dispute publicly express feelings through song, comedy and dance. Both parties will spend time creating a song and dance to mock the other, making fun of the confrontation. The audience decides the winner, who will usually have greater poetic or vocal skills.4 This sounds a bit like what some advocates do in court!
Another example can be seen in Nahe Biti - Timor East dispute resolution which requires people in dispute to first create a mat from certain plant material. The mat will eventually become the forum on which the dispute resolution process will occur. The design of the mat, including the size is a very important part of the process and is steeped in cultural traditions. In some ways, the creation of the mat is a bit like our agreement to mediate as it shapes the way that the dispute is to be resolved. The idea is that resolution requires a rebalancing of the past and future, to return to a state of harmony. The whole village is involved in the process so there is no concern about privacy breaches or confidentiality (maybe we have something to learn from this).

Similarly, the Kimi and Posiga systems of dispute settlement which feature in the Adaboya region of Ghana rely on elders and traditional practices to resolve disputes. Inherent in the Kima system is the need to hear all stories of the parties involved in the dispute, just as Court practices require hearing evidence and the result is determined by the panel of elders. These elder or wise counsel dispute resolution systems can be seen all around the world and have many of the same elements as arbitration. Arbitration is a form of dispute resolution which reaches backwards as far as the Phoenicians and was adopted by artisans as a practical, cost-effective form of dispute resolution which guaranteed quick outcomes and therefore payment. The “quick draw” procedure for appointment of the arbitrator (recently removed in New Zealand through the amendment of the Arbitration Act) meant that the responding party had to act quickly if they disputed the arbitrator named by the Claimant.5

What joins these dispute resolution mechanisms together is that they are practical forms of dispute resolution which do not involve parties going to Court. This also clarifies the ignominy of these ancient forms of dispute resolution being referred to as alternatives. The term ‘alternative’ is only relevant in a society which regards going to Court as the main form of dispute resolution.

The New Zealand experiences
While we may be a young nation, we have been shaped by our history as has our dispute resolution systems. In 1840 Aotearoa/New Zealand was created through the signing of a treaty between the Crown and Māori. Not all Māori agreed with or signed the Treaty. Despite objection, the Treaty was declared to apply to all Māori and therefore it became a founding document.

In traditional Māori society, disputes were mostly resolved either by a consensus approach or where appropriate battle together with a system of mana, tapu and utu.6

It is significant that the method of dispute resolution which lead to the Treaty being signed was a consensual model where parties were encouraged to discuss and debate the proposal. Hui were held with iwi and hapū groups with the intention that parties would reach agreement. This process was undermined when the Pākeha used power to first apply the treaty to all and then used the Treaty to divest Māori of power over the very things that the treaty said protected them.7

Often the experience of Māori was that they would agree to sit down with representatives of the Crown and Māori who would have a hui to try and reach an agreement. The problems arose when the Crown became agitated about delay and the good faith negotiations ended with a common experience from Māori that they were time and again were betrayed. Māori have looked to the Courts to address the power imbalance and through a series of cases Māori rights over land, natural resources, fish and marine resources have been upheld; and the Crown obligation to consult and reach agreement with Māori has been upheld. These decisions have led to legislative changes which uphold the principles of the Treaty and place obligations on parties to resolve issues.

Te Tiriti creates a unique New Zealand dispute resolution environment. The Government Centre For Dispute Resolution has been charged with the responsibility of giving advice to government about what constitutes a good dispute resolution regime.8

In a similar vein, the Parliamentary Counsel’s office sets out guidance for the inclusion and drafting of clauses in proposed legislation.9 That guidance says:
The form of Alternative Dispute Resolution (ADR) adopted should help to achieve the policy objective and be appropriate to the nature of the dispute and the issues in question.

A range of forms of ADR will be appropriate, depending on the different types of issues. The ADR processes most likely to be suitable for inclusion in legislation can be divided into three broad categories:

  • Facilitative processes (facilitation, negotiation, mediation) - These involve an impartial third person with no advisory or determinative role who provides assistance in managing the process of dispute resolution.
  • Evaluative processes (conciliation, expert evaluation, case appraisal) - These involve an impartial third person who investigates the dispute, advises on the facts and possible outcomes, and assists in its resolution.
  • Determinative processes (adjudication, arbitration, expert determination) - These involve an impartial third person who investigates the dispute and decides that is legally enforceable.

Some key issues to consider, when deciding which process is appropriate for a scheme, are noted below.

  • The role of the third party - Will the third party predominantly help the parties to reach agreement, will they investigate the dispute and advise on potential compromises and outcomes, or will they make a legally enforceable determination?
  • Control over participation and process - How flexible or formal should the process be? How much of the process should the parties determine? What are the consequences (if any) of parties refusing to engage in, or withdrawing from, the process once commenced?
  • Nature of the outcome - Will the outcome be confidential and binding on the parties? Will the outcome be appealable to a court under certain circumstances?
  • Administration - Who will administer the service? Will the Government provide the ADR service? Will the service be free to all parties? How will the third person and location be determined?

Further information on inclusion and drafting of legislation can be found on the website of the legislation design and advisory committee.10 It is of interest that the Parliamentary Counsel and legislation design and advisory committee refer to dispute resolution as ADR whereas the Govt Centre for Dispute Resolution refers to the same processes simply as dispute resolution.

What does this mean for dispute resolution practitioners and lawyers?
Regardless of our chosen fields of practice, we need to be objective and recommend the most appropriate course of action for the dispute in front of us or maybe even still ask the parties to design a process which meets their needs. Imagine resolving a building and construction dispute through creative singing!

While going to Court should never be the first course of action, it is certainly the appropriate course in some cases. As Justice Winkelman (as she was then in her speech to the AMINZ Conference in 2011) said mediation is no substitute for civil justice and nowhere is that more true than in situations where there is a risk of harm being done or a power imbalance exists which cannot be addressed by the dispute resolution provider.11

Take Family Dispute Resolution as an example. Often there are very serious underlying issues which may be at least in part causative of the family breakdown. Often there are concerns about one parties behaviour whether that be about the use of pornography or some other behaviour such as addiction to alcohol or drugs that is part of the situation faced by the parties. Whenever these types of issues are raised by any party who has been referred to or who wants to attend mediation, the mediator must not be afraid to find out more and in doing so uncover the possibility that mediation is not a suitable option. In doing so the parties may make decisions themselves to engage in counselling, therapy or addiction counselling which although not the first intended process has the effect of resolving issues for the family.

And the meaning of the story is…..
The wide range of options available for resolving disputes gives us an opportunity to be thoughtful and creative about the processes we use to resolve disputes. We can do so much more than just push people into a compromise or even worse hold off resolving disputes which inevitably makes the options for resolution more difficult and the likelihood of some restorative or redemptive outcome unlikely.

About the author
Denise Evans is Principal, Dispute Resolution at Fair Way. As part of this role, Denise provides Dispute Resolution leadership within Fair Way and champions the use of Dispute Resolution services in New Zealand and internationally.
Denise has over 35 years’ experience as a lawyer, mediator and arbitrator, and she has vast experience in resolving commercial and family disputes. If you would like to get in touch with Denise, please contact her by email at denise.evans@fairwayresolution.com

1 See J Fohlberg and A Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation, 1984, p. 1-8
2 For further information, I recommend Boulle, Goldblat, and Green, Mediation: Principles, Process, Practice, 2008 pp 41-45.
3 See P McIntyre, some reflections on the roles of elders in decision making in indigenous communities (2001), 3(9) ADR Bulletin 109
4 See https://www.linkedin.com/pulse/what-inuit-people-can-teach-us-conflict-resolution-josie-stoker/
5 Arbitration Amendment Act 2019.
6 https://nzhistory.govt.nz/culture/frontier-of-chaos/maori-values
7 Declaration by Lieutenant Governor William Hobson 21 May 1840
8 See https://www.mbie.govt.nz/cross-government-functions/government-centre-for-dispute-resolution
9 See http://www.pco.govt.nz/adr-model-clauses
10 See http://www.ldac.org.nz/guidelines/legislation-guidelines-2018-edition/appeal-and-review/chapter-29/
11 Winkelmann CJ, ADR and the Civil Justice System, AMINZ Conference 2011. See https://www.courtsofnz.govt.nz/speechpapers/ADR%20and%20the%20Civil%20Justice%20System.pdf/at_download/file