There’s no argument that 2015 had its share of arguments.
Indeed, the year just gone presented a gauntlet of arguments – not just for those of us in the business of mediation and arbitration, but for anyone who keeps an eye on current events – that more often than not underscored the problems of not using the best dispute-resolution expertise.
That was the case irrespective of whether the stoush took place in Christchurch or Cairo, Gisborne or Geneva, New York or New Plymouth.
In December, for instance, a $28 million divorce wrangle between Mark and Melanie Clayton, one of the biggest fights of its kind in New Zealand, was finally settled out-of-court. The case was seen as having a widespread effect on how trusts are constructed.
In terms of dispute resolution, however, the more immediate point appeared to be how much blood, sweat and tears might have been saved if a mediator or an arbitrator, specialising in family matters, had been involved from the start.
The same point could be made about protracted disputes over cycle ways in Wellington, the hotly contested suspension of school pupils for taking a ride on an airport conveyor belt or simmering differences between a union and management of an Otago rest home.
Politically interesting
There were some bright spots as well. National politics, of course, thrives on disputes, but one of the year’s most interesting moments politically, at the very least for the rural community, was the introduction of a piece of legislation that has yet to be debated.
In June, New Zealand First unveiled its Agricultural Debt Mediation Bill without probably appreciating the full extent of the financial roller coaster ride the dairy sector would soon find itself on in during this past dark rural winter. But with world auction prices forcing the dairy payout lower, it was hard to argue against the timing of the related discussion around the member’s bill about the need for the most skilled mediation process between farmers and banks. It’s also hard to imagine that the discussion won’t start again in earnest if the rural sector suffers another auction hit this year.
The government gave final assent to amendments to the Construction Contracts Act, which provides for adjudication of payment claims. From September, the amendments will see the extension of the ambit of adjudication to design, engineering work and quantity surveying services.
The Trans-Pacific Partnership was announced on 5 October with much fanfare, some disquiet and considerable interest in the Investor State Dispute Settlement clauses, which provide the legal linchpin of the tariff-elimination deal agreement between the 12 Pacific Rim countries.
NZ in good position
As significant as the political dimensions to the multinational agreement are, part of its ultimate success may yet hinge on the quality of international arbitration between member nations – and here, New Zealand may be in a good position to help.
New Zealand experts can play a “really important role in international dispute resolution and, ultimately, world order,” according to Wendy Miles QC. An expatriate New Zealander, Ms Miles visited in 2015 for the AMINZ conference, funded by the New Zealand Law Foundation. She is a partner and global head of arbitration at Boies, Schiller & Flexner in London.
“I hire more New Zealanders than any other foreign nationality,” she said during her July visit. Referring to matters such as climate change and the settlement of indigenous disputes, Ms Miles commented about lawyers that “New Zealanders are so well qualified to be in the world of international dispute resolution because they are living all the legal issues.”
Treaty claims
In the realm of settling disputes with Māori, the year saw many Treaty claims negotiated, including with Taranaki iwi. And the government signaled the soon-to-be introduced Te Ture Whenua Māori Land Bill, which looks likely to require parties to mediate over disputes regarding Māori land.
Racing to the finish line in 2015, the Law Commission released its report into alternative processes to deal with domestic violence cases.
Leaning heavily on the ground-breaking work done in this country in the area of restorative justice, the government is asked to extend the reach of such measures to allow some domestic violence cases to be dealt with entirely separately from a criminal trial.
As Prime Minister John Key commented last year: “We know that litigation is not always the answer, and the work of arbitrators, mediators and those involved in AMINZ helps to promote the benefits of dispute resolution outside of the courtroom.”
And so the year ended, with disputes being handled both by our domestic courts and increasingly, privately, as well. If 2015 is any measure, we can expect to see no let-up in this approach for year ahead.
Deborah Hart is the executive director of the Arbitrators’ and Mediators’ Institute of New Zealand.