Arbitrators' and Mediators' Institute of New Zealand Conference

May I begin by greeting everyone in the languages of the realm of New Zealand, in English, Māori, Cook Island Māori, Niuean, Tokelauan and New Zealand Sign Language.  

Greetings, Kia Ora, Kia Orana, Fakalofa Lahi Atu, Taloha Ni and as it is the evening  (Sign)

May I specifically greet you: David Carden and Deborah Hart, President and Executive Director respectively of the Arbitrators’ and Mediators’ Institute of New Zealand, your fellow board members and staff; Hon Michael Kirby, President of the Institute of Arbitrators’ and Mediators’ Australia and until very recently, Justice of the High Court of Australia; Hon Christopher Finlayson, Attorney-General; members of the judiciary current and erstwhile practitioners; Distinguished Guests otherwise; Ladies and Gentlemen. 

Thank you for inviting my wife Susan and I to attend the AMINZ conference dinner in Wellington this evening.  In my contribution which I hope will be in the nature of a soufflé would like to take an opportunity to comment on a matter that may be at the forefront of many practitioners’ minds currently - that is the role of alternative dispute resolution in difficult economic times.

As a lawyer, judge and ombudsman, I have maintained an interest in differing ways of resolving disputes and as a new ombudsman undertook specialist tuition in alternative dispute resolution.  If ever I have an autopsy I can predict a finding of the results of attending an extended LEADR programme in Melbourne, Australia in October 1996 in the company of 23 other people, all of whom were union or construction negotiators.

New Zealand's legal system, as we know continues to be substantially based on the adversarial form of justice - two competing arguments being placed before either judges or juries who then decide upon the merits of the case.  I believe it is one that has served New Zealand well enough.

Sitting alongside this system, there have been for a long time other means of resolving disputes.  While ADR is often viewed as a modern concept, as our guest Hon Michael Kirby noted 33 years ago in giving the inaugural address to the first dinner of the Commercial Institute of Arbitrators in Canberra, it actually has a lengthy genesis.  As he noted on 25 June 1976: 

“The notion of people with common interests banding together to establish courts tailored to their own particular needs leads us back into the very growth of the common law. The first courts of law were established in this way. The commercial courts of the middle ages, the court of piepowder and maritime courts of sea port towns ‘sitting on the seashore from tide to tide’ are examples.”

I think it is fair to say that New Zealand recognised the incoming tide in needing to adapt the adversarial system to incorporate alternative means of resolving disputes, such as mediation and arbitration.  

As a working judge for a dozen years, I was, of course, aware that imposing a decision often left parties somewhat less than satisfied.

In the criminal jurisdiction, where the dispute is between the Crown, and an individual alleged to have broken the law, judges have always been aware that a third party—the victim—deserves consideration and recognition.  While preserving the essential dispute between the Crown and the alleged offender, a variety of mechanisms have been put in place to ensure that the victim's voice is heard.  No system is perfect, but I believe that growing recognition of victims in our court system is an improvement on what it was when I graduated in 1970.

In the civil jurisdiction, judges are always keen to explore opportunities that bring parties together to resolve their differences, obviating the need for a formal ruling.  Sometimes, however, each side's position has become so entrenched, that it is often difficult to get the two sides to meet, let alone discuss their dispute amicably.  

No doubt a number of people in the legal community will concur with the comment of a Virginian mediator named Massey who said, teetering on the edge of bad taste that :- “litigation is the chemotherapy of conflict.” Just like protracted litigation, chemotherapy drugs, in their attempt to kill off the cancerous cells, invariably kill many healthy cells as well. 

Some of the better advances in alternative dispute resolution have been made in the Family Court and Youth Court jurisdictions.  In this regard, I note that my erstwhile judicial colleagues, Judges Paul von Dadelszen, and Vivienne Ullrich, both of the Family Court bench, are addressing your conference. Both courts have made frequent use of mediation and restorative justice mechanisms to resolve disputes.  By encouraging people to talk and attempt to arrive at orders that are agreed upon, rather than imposed, there is a far better chance of creating a lasting resolution.   In turn, restorative justice has increasingly moved from the family and youth court jurisdictions into the wider district court criminal jurisdiction.

I am also conscious that many parts of the wider court system—the Environment, Employment and Māori Land courts the Waitangi Tribunal and the Disputes Tribunal—regularly use ADR techniques to resolve disputes.  Indeed, I note that Judges, of the recent past in the form of Anthony Willy, and of the near future in Peter Spiller, are also addressing your conference.  Indeed, I understand there to be some 45 New Zealand statutes that provide for a mediated outcome to resolve disputes.

As an Ombudsman, called upon to resolve complaints by members of the public against and local and central agencies, my colleagues and I regularly used more informal means of dispute resolution.  The power to compel a council or government agency to furnish documents and information during investigation is only infrequently invoked.  Likewise the Ombudsman's power to require people to give statements under oath is rarely used.

Following the lead set by New Zealand's first holders of that office, Sir Guy Powles and Sir George Laking, ombudsmen use the powers of persuasion to arrive at mediated outcomes.  Both central and local government agencies have come to recognise that an Ombudsman's investigation is not necessarily a black mark to be feared, but an opportunity to look afresh at administrative practices – and what may have happened and why.  I like to explain my experience of the difference between a Judge and an Ombudsman – the former having a set jurisdiction and a limited number of powers and the latter unlimited jurisdiction and no powers at all except persuasion!  This applies to cases within the Official Information Act jurisdiction to the same extent.

All of this underpins the important role played by the AMINZ, as the largest professional institute in New Zealand for people working in the area of dispute resolution.  The increasing complexity of modern society has created many avenues where your skills are sorely needed.  And they will particularly be tested in the current economic climate.

According to many economists, New Zealand and the world are in one of the most difficult economic periods since the time of the Great Depression of the 1930s.  A malaise that was originally centred solely on the financial sector has spread far further.  A report by the World Bank earlier this year indicates the world economy as a whole would shrink for the first time since the end of the Second World War.

Governments throughout the world, New Zealand's included, have implemented a variety of initiatives to lessen or blunt some of its worst effects.  But it already seems clear that our society and economy will face considerable stress.  

It also seems inevitable that some of that stress will be played out, not only in civil and criminal cases before the courts, but also heightened tension in a host of other disputes, from resources management issues through to employment matters.

Sadly, at a time when alternative dispute resolution mechanisms will be most sorely needed, will also be the time when parties to disputes may be less inclined to use them. 

A resolution to a dispute reached through the use of ADR not only costs less, it takes less time and it is one that the parties are more likely to honour long-term.  Such a mediated resolution can also be far more creative in its "remedies."

That is the challenge I will leave to the Institute and its members to continue to actively promote your services and the advantages it brings, not only for the individuals or groups in dispute, but also to the wider community.

The move by the Institute to establish an Arbitration Appeals Tribunal, allowing parties the opportunity for a “second-look” at an issue whilst maintaining confidentiality is a welcome step.  Again, this will lessen the need to refer matters to the High Court where, not only is confidentiality lost but costs invariably are much higher.

I will close with a comment made recently by the Attorney-General, Christopher Finlayson, in launching on 5 May this year a revised edition of Laurence Boulle, Virginia Goldblatt and Phillip Green’s text, Mediation Principles, Process, Practice.  Comparing two commercial cases in which he had previously been involved, one that was subject to litigation and the other to mediation, he asked:

“What, seriously, is better for the client? Long, drawn-out litigation or a mediation at an early stage in the life of a proceeding which results in a settlement? Putting aside obviously self-interested and almost obscene considerations of targets and timesheets, the answer is obvious.”

The Attorney-General’s comment enables one to assert him to be a potent convert to mediation.  One can hope that there will be many more!

And on that note of challenge and anticipation I will close in New Zealand’s first language Māori, by offering everyone greetings and wishing you all good health and fortitude in your endeavours. 

No reira, tēnā koutou, tēnā koutou, kia ora, kia kaha, tēnā koutou katoa.