New Zealand lawyers have always spent much more time in the “without prejudice world” than in the “court world”, according to Wairarapa-based mediator Grant Allan.

This means, he says, lawyers in this country have a strong and longstanding practice of liaising with their colleagues via “without prejudice” discussions in order to achieve pragmatic and common-sense solutions for their clients.

This is why New Zealand lawyers are generally so comfortable with mediation, as it is – in many respects – just an extension of the way they have worked in the “without prejudice world” for years.

“A great many lawyers use mediation very effectively as a forum for resolution to get good outcomes for their clients.

“As a mediator, I am privileged to get to see lawyers advancing the interests of their clients in a rounded manner,” Mr Allan says.

“This means I see them not just assessing and asserting their client’s legal position but also in relation to matters that are idiosyncratic to the particular client. So it is not just ‘litigation risk’ they consider but a whole range of personal and practical aspects – which an approach focused just on legal aspects simply cannot take into account.

“This involves multi-level advocacy, intellectual and emotive, by lawyers in mediation – not just in relation to the other side but also involves, as the saying goes, that… ‘often a lawyer’s best submissions are those made in private to their own client’.

“As a result, I get to hear some excellent advocacy, even though the clients do not always appreciate just how good it is!”

While Mr Allan still holds a practising certificate as a barrister, he is now a mediator almost the entire time.

“I sometimes get roped in to assist with some litigation but it’s only infrequently now; generally as a result of an occasional court appointment or I’m asked to assist in a matter in some sort of independent role by the other lawyers involved,” he says.

“I miss court work, but I realised early on that it’s not a great place for clients to be. So I’ve always had a focus on trying to get resolution for clients short of full litigation.

“I accept that there are some risks with mediation in relation to the development of the law. In particular I am mindful of the argument that mediation can result in a lack of cases getting before the courts in terms of development of precedent.

“I appreciate that this is a concern but I think that what’s happening in society at large usually makes sure that cases that will develop precedent actually do get determined by the courts.

“For example, the sheer numbers of family trusts in New Zealand in recent years, extraordinary numbers really, means that while lots of disputes involving trusts are mediated and so never get to court, a good number still do. As a result cases setting precedents in this field are regularly being determined, which lawyers in mediation then factor into their assessments and how they go about things.

“You see the same in other fields where social advances or inventions generate a lot of new activity with the corollary of a need to develop guidelines for behaviour when disputes arise.

“I don’t see it as court versus mediation dichotomy. I see the two as working together:

• with mediation enabling clients to be assisted in sorting out matters themselves consistent with the ‘without prejudice’ tradition which in turn assists in the courts not being swamped; but at the same time
• with the courts still being seized of cases where circumstances call for a court determination to be made that results in precedents which greatly assist resolution being achieved informally via ‘without prejudice’ negotiation whether directly between lawyers or via mediation.

“It is not a case ofeither mediation or litigation. Both forums can and do work together in a symbiotic manner just as the worlds of ‘without prejudice’ negotiation and court determination always have,” Mr Allan says.