LEADR International Dispute Resolution Conference

I greet you all in the languages of the realm of New Zealand - English, Maori, Cook Island Maori, Niuean, Tokelauan and New Zealand Sign Language.

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

May I specifically greet you: Margaret Hallsmith, Chair of LEADR International; Fiona Hollier, Chief Executive Officer of LEADR International; Carol Powell; Chair of LEADR New Zealand; and Gabrielle O'Brien, Executive Officer of LEADR New Zealand; Distinguished Guests; Ladies and Gentlemen.

Thank you for inviting me to give the closing address to the ninth LEADR International Dispute Resolution Conference here in Wellington. As a lawyer, Judge and Ombudsman, I have maintained a particular interest in differing ways of resolving disputes, including the undertaking of LEADR programmes.

New Zealand's legal system is substantially based on the adversarial form of justice.  Two competing arguments are placed before either judges or juries who then decide upon the merits of the case. While recognising that no system is perfect, I believe it is one that has served New Zealand well. 

At the same time, New Zealand has been an international player in adapting that system to incorporate alternative means of resolving disputes, such as mediation and arbitration.  As a judge, 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 become instituted 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 the parties together to resolve their differences, and so avoid 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.

But some of the greatest advances in alternative dispute resolution have been made in the Family Court and Youth Court jurisdictions.  In this regard, I note that my former judicial colleagues, Andrew Becroft, Principal Youth Court Judge, and Judge Peter Boshier, Principal Family Court Judge, have both addressed this conference. Both courts have made frequent use of mediation and restorative justice mechanisms to resolve disputes.  By getting people talking, and attempting to arrive at orders that are agreed upon, rather than imposed, there is a far better chance of creating a lasting resolution. 

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 are 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 ombudsmen, Guy Powles and 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. This applies to cases within the Official Information Act jurisdiction to the same extent.

All of this underpins the notion that organisations such as LEADR have a key role to play in our community.  With more than 1000 members, of which about a third are in New Zealand, LEADR is an important Australasian professional organisation for mediators and other ADR practitioners.

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

The increasing complexity of modern society has created many avenues where your skills are sorely needed.  These vary from the areas I have touched on, the government and judicial sectors, through to the environment, international negotiations, workplace and employment issues, family and medico-legal disputes, and the use of new communication technology, such as the internet.

In this regard, I congratulate the organisers of this conference of the depth and breadth of the programme presented in Wellington over the last three days.  It has been well structured and for anyone interested in alternative dispute resolution, from someone keen to learn more through to the seasoned practitioner, it would have provided valuable knowledge and insight.

Another area of significance for professional mediators is New Zealand's increasingly complex cultural and ethnic mix.  More than one in five people living in New Zealand today were born overseas.  In 1901 about 80 percent of all overseas-born New Zealanders hailed from Britain and Ireland.  By the time of the 2006 Census, that had dropped to 28.6 percent—the same proportion as New Zealanders born in Asia.

As someone who was born in New Zealand, but is the son and grandson of migrants from Fiji and India respectively, I believe this increasing diversity has the ability to enrich our nation. 

But as a former Judge and Ombudsman, I am keenly aware of the challenges this diversity places on those whose task it is to mediate, arbitrate or adjudicate on disputes.

New migrants may find New Zealand's society and its systems for resolving disputes, and particularly the legal system, baffling.  When the difficulties of speaking English as a second language are combined with different cultural and religious values, the potential for a combustible mix increases significantly. When it is estimated that for the 500 most common words in the English language, there are about 14,000 possible meanings, it is not difficult to see how easily misunderstandings can occur. 

Assisting those people, so that they are fairly treated, is an onus on all those involved in resolving disputes—from the courts and other statutory tribunals through to those working as mediators.  As the difficulties of international relations shows, cross-cultural communication is a fraught area where customs and practices common to one culture can easily be misinterpreted by another.

New Zealand will need to sensibly debate how the values of those new to our country can be accommodated alongside the democratic and secular values that we cherish.  I believe people with your skills have much to offer this debate, and I urge you to make your voices heard.  The theme of this conference—crosswinds to calm waters—aptly describes the role professional mediators will play in the years ahead.

With that challenge I'll close in Maori by issuing greetings and wishing you good health and fortitude in your endeavours.