6th International LEADR Conference

E nga mana, e nga reo, rau rangatira ma: tena koutou.

Nga hau e wha, nga iwi e tau nei: tena koutou, tena koutou, tena koutou katoa.

 
Mr Chairman, our visitors from overseas, my fellow New Zealanders.

We have been welcomed in the traditional manner of this country's Maori people. And I have greeted them, our distinguished guests and visitors, all who have gathered here, people from the four winds, in their language. For it is one of the two official languages of this country. It is now our custom to commence proceedings and to welcome visitors in a bi-cultural way, so as to demonstrate New Zealanders' determination to reconcile our peoples to each other, to our distinct cultures and to our shared, but rather tangled, history.

This is an area in which ADR is being practised with considerable success. An outstanding example was brought to completion last night, when I gave Royal Assent to the Ngai Tahu Settlement Bill: the result of many years of discussion and negotiation which led to a fair and just resolution of a century-old grievance without recourse to the Courts.

And now let me welcome you in our other official language, and say what a pleasure it is to share with you, this opening of LEADR's Sixth International Conference in Australasia.

I am a born and bred Wellingtonian, although I sat for nine very enjoyable years in the High Court here in Christchurch, but my origins mean that I can say without suspicion of bias that, for a conference in springtime, there is no better place than this Garden City. I trust you not only have a stimulating and valuable conference, but that you who are visitors also enjoy your time here in this city, or at Kaikoura or on Banks Peninsula - or at Mount Hutt if the snow has survived.

I was asked to speak briefly, which, of course, is a challenge to a lawyer. The reality is that it's not the function of a person fulfilling my role to usurp that of the speakers, but rather to be supportive: and that's what I certainly want to be.

Life on the bench tends to focus your mind on litigation - in other words, trial by legal combat - and so it was with very pleasant surprise that I discovered from the Conference material that was sent to me, the extent to which ADR has become accepted, and is used, as a means of resolving disputes of so many kinds. There are of course some disputes that cannot be resolved in this way, such as, if I may say so, the wayward use of the apostrophe in the possessive, "its." There are other disputes, however, that it would actually be less than completely helpful to resolve by alternative means, for we need litigation to interpret and develop the law. We can't really leave it entirely to the professors, great help though they often are.

But such examples apart, there can be little doubt that litigation is an unsatisfactory way of resolving a dispute, especially where human emotions are involved, as they so often are. I suppose the most bitter and the most destructive disputes are about custody, matrimonial property and family wills and between feuding neighbours; and litigation is certainly no emollient of the passions those arouse. But in all cases, litigation has become inordinately, usually disproportionately, expensive, and in many instances, in addition to those I have mentioned, it is simply the occasion for a prolonged build up of frustration and anger and bitterness, with the break in human relationships being finally sealed in a judgement which awards the crown of victory to one side and orders the other to help pay for it. Quite apart from the litigants themselves, this is often not a satisfying, even agreeable, experience for the judge either.

It was in the Family Courts that this realisation first dawned. They could be quite brutal places, when I was a young practitioner. But in the late 1960s, the first tentative steps were taken towards ADR in the form of conciliation, strangely an abhorrent idea to some practitioners of the day. Now of course, the procedures are much more fully provided for in the Family Proceedings Act 1980, and are almost universally accepted not only as desirable, but as actually necessary.

And so I welcome the growth of ADR not simply, not merely, because it reduces pressures on the Courts by diverting cases that would otherwise have to be tried; rather, I welcome it because it is a more human - dare I say a more civilised - approach to problems that are usually essentially human, not purely legal at all. I am delighted that the Rules of Court now recognise this, and that the judges and the profession are coming to do so more and more. This move away from traditional adversary advocacy is to be fully encouraged.

I have been speaking about civil litigation, but of course, the same ADR techniques have considerable value in the criminal law. The underlying philosophy of the criminal law is that it is society, the corporate whole that is offended against by offending: but usually, it is individuals who are the actual victims and in the great majority of cases, criminal sanctions fail to satisfy the sense of violation or outrage that the victim suffers. The very impersonality of the criminal process tends to dehumanise both the act and its consequences. The offender too often does not realise the real impact of what he has done, and the victim remains just that, a victim; knowing only that the offender somewhere out of his reach serves whatever sentence was imposed on him. The offender and the effect of the offence seem to bear no human relationship to each other.

Although it has no particular relevance, I like the story of the very kindly English judge, who once had to sentence an elderly habitual offender to a substantial term of imprisonment. The offender protested at its length: "I won't live to serve that sentence, Your Lordship." "Well," said the kindly judge, "just serve as much of it as you can."

The concept of restorative justice, as it has been developed in dealing with young offenders in this country, has attracted considerable attention elsewhere, and I am sure provides a model that can be adapted in appropriate cases for older offenders. I am sure too, that there is scope for some Maori offenders to be dealt with in a traditional manner on their own home ground, the marae. Of course, both these issues need to be thought through carefully and if they are to be implemented to any extent, will first require considerable public education: not an impossibility, I'm sure.

There are wider applications for ADR too. The art of dispute resolution should not be confined to matters that would otherwise go before a court. In the international arena, the old notion of gunboat diplomacy is fortunately being replaced by shuttle diplomacy, which in the right hands, as at times it has been, has been much more effective. We have seen a fine example of this form of ADR in the intervention of our own Minister of Foreign Affairs in the unhappy strife on Bougainville. By contrast, we have seen a certain amount of sabre rattling too, and the generally negative effect that has. I firmly believe that small nations like New Zealand, with no major power alliances, can play a significant role in the resolution of international, or internecine, disputes.

At a more local level, we see too much confrontation, a too-ready adoption of positions from which there is no budging. So often it is the result of personalities, or if it does not begin with them, it certainly ends with them. The early intervention of a mediator could save so many words, so much paper, so much anger: and so much public frustration.

All that I have been saying will doubtless be very obvious to everyone here. It's the very reason you are here. Yet I think it is important to state the obvious sometimes, because I am sure that the advantages of ADR are not widely enough known; nor is the work done by LEADR and its members, both in acquiring the very special skills that are needed; and in making them available to the community.

I would like to thank you for that work and for your attendance at this Conference to further develop those skills. I hope that the proceedings of the Conference will be well-reported in the media, for you have an important message to give to our people.

You have been very patiently waiting for the presentation of the first keynote speaker; so to reward your patience, let me conclude by declaring officially open, this - it's a bit of a mouthful - this Sixth International Conference in Australasia on Alternative Dispute Resolution.