New Zealand Law Society - Considering possible settlement: Asian parties in court

Considering possible settlement: Asian parties in court

Considering possible settlement: Asian parties in court
Pictured L-R: NZAL President Mai Chen, Justice Sally Fitzgerald, Vice-President NZAL Pam Davidson, Law Society Vice President David Campbell, and Justice David Johnstone.

On Monday hundreds of lawyers attended an oversubscribed event on the challenges and opportunities for settlement by Asian civil litigants in New Zealand.  

Chaired by Mai Chen who also shared new research findings to be published in the June edition of the New Zealand Law Journal following her first report on Culturally and Linguistically Diverse Parties in the Court: A Chinese Case Study (November 2019), the lineup of experts at the event discussed cultural differences that could pose challenges and barriers to settlement.  This popular event was led by New Zealand Asian Lawyers, with support from the Ministry of Justice, the New Zealand Bar Association, Russell McVeagh and in association with the New Zealand Law Society.   Every speaker spoke about the importance of understanding the unique cultural differences that arose within each culture. 

Speakers considered potential challenges such as: 

  • The problem of saving face and the perception that a settlement is an admission of fault or a weakness in the case. 

  • Cultural and linguistic communication barriers between clients, their lawyers and judges. 

  • The different issues underlying disputes that increase the likelihood of the matter going to trial and not settling e.g. undocumented contractual agreements and factual disputes. 

  • Misunderstandings around the New Zealand legal context, including the rule of law, and the role of judges as adjudicators and not inquisitors. 

Vice President David Campbell speaks about the Law Society’s regulatory and representative perspective.

David Campbell, from the Law Society spoke about how a lack of understanding of cultural differences could impact adversely on relationships between lawyers and between lawyers and clients, leading to increased complaints and disciplinary issues – “some warranted and some not warranted, but all best to be avoided”.

Mr Campbell explained that the problems experienced by the Lawyers Complaints Services were a microcosm of those before the courts. He acknowledged that complete data was not available but observed that the limited data we have shows that some parts of the Asian legal community were more likely to lodge complaints than average. In terms of complaints more generally, they were less likely to resolve early with most going through the Standards Committee process.  

Mr Campbell emphasised the importance of all lawyers taking the opportunity to be collegial and network with colleagues to ensure parts of the profession weren’t isolated.  Contact with the rest of the profession allows lawyers from all cultures to “share the issues they encounter with colleagues—discussion means we learn from each other—and find ways to solve challenges”. 

Pictured L-R: David Liu, Eryanto Widjaya, NZAL President Mai Chen, Jae Jun Kim and Yvonne Mortimer-Wang.

Speakers at the event 

Chaired by Mai Chen, President of NZ Asian Lawyers 

  • Justice David Goddard – Court of Appeal, Chair of the Borrin Foundation’s Grants and Scholarships Committee 

  • Justice Sally Fitzgerald – Chief Judge of the High Court 

  • Professor Mindy Chen Wishart – Former Dean of Law, Oxford University, author of Oxford University Press Studies in the Contract Laws of Asia and author of ICLQ article on Legal Transplant and Undue Influence: Lost in Translation or a Working Understanding? 

  • Professor Andrew Godwin- Centre for Asian Law University of Melbourne 

  • Michael Taylor, Partner at Russell McVeagh 

  • Yvonne Mortimer-Wang – Barrister, Co-Chair of NZBA’s Advocacy Committee, member of the Diversity and Inclusion Committee, NZBA 

  • David Campbell – Law Society Vice President, Partner at Dentons 

  • Nick Malaro - Barrister 

  • Brent O’Callahan - Barrister 

David Liu from Heritage Law also provided a useful summary to attendees regarding six features of Chinese clients and practice. 

The speakers acknowledged there was a need for more robust research in order to clarify and quantify the issues raised. The Michael and Suzanne Borin Foundation has commissioned Mai Chen and Yvonne Mortimer-Wang to undertake a research project in this area looking at whether there has been an increase in Asian civil litigants in New Zealand disproportionate to the population and whether those litigants are less likely to settle and more likely to appeal and if so, then why.