From determination to resolution - The role of ADR in the senior courts
Mark Kelly advocates for changes to be made to the court framework in Aotearoa New Zealand to more actively encourage mediation throughout the course of civil proceedings.
Mark Kelly’s research paper ‘Mediation and the Senior Courts’1 considers whether senior courts should be granted greater powers to order mediation in civil disputes. Drawing on the precedent set in Churchill v Merthyr Tydfil CBC,2 where courts in England and Wales were granted the authority to order parties to engage in alternative dispute resolution (ADR), Kelly advocates for changes to be made to the court framework in Aotearoa New Zealand to more actively encourage mediation throughout the course of civil proceedings.
Limitations of the current framework
Kelly identifies limitations in the current court framework. Under the High Court Rules 2016 (HCR) and the Court of Appeal (Civil) Rules 2005 (CAR), judicial powers to promote ADR are modest. Kelly observes that the HCR prioritise “determination” over “resolution,” with mediation typically only being considered once a case is ready for a hearing. While the CAR do allow for directions to support resolution, little else is done to promote the use of ADR. Kelly notes that neither set of rules provide strong procedural nudges or consistent cost consequences for failure to engage in ADR.
Upcoming reform
Positive changes are coming. From 1 January, the High Court (Improved Access to Civil Justice) Amendment Rules (HCAR) will incorporate the concepts of proportionality and resolution into decision-making. Judicial Issues Conferences will include the express consideration of whether it is appropriate to resolve the proceeding by alternative means such as mediation, without the current prerequisite of needing to be ready for trial.
Separately, the Ministry of Justice recently consulted on a proposed statutory adjudication framework. This initiative aims to offer businesses a fast-track mechanism for resolving disputes outside of court. If implemented, businesses would have access to a quick and cost-effective mechanism to settle their disputes while reducing the strain on court resources.
Embedding ADR in court procedure
Aspects of Kelly’s report will not be addressed by the incoming reforms. He proposes a “suite of powers” to embed ADR into senior court processes. For the HCR, this would include:
- a presumption that parties will endeavour to resolve disputes by using ADR,
- the ability for Courts to order ADR without party consent, and
- costs sanctions which explicitly require a reasonable justification for failure to engage with ADR.
For the CAR, he recommends the power to order parties to mediate and similar costs sanctions.
Trust and collaboration
Reliance would not solely be placed on procedural changes to encourage the use of ADR. Kelly also emphasises the need to build trust in mediator competence, suggesting the creation of a panel of accredited mediators for senior court matters. Enhanced communication between mediators, lawyers and the courts would play a key role in integrating ADR.
Insights from the Profession
Malcolm Wallace, AMINZ President – Barrister, Arbitrator and Mediator
Wallace has observed a steady expansion in the use of ADR, particularly in commercial and complex family wealth disputes. He supports greater judicial powers to encourage mediation and welcomes the upcoming changes to the HCR. However, he cautions that “confidence in the Courts might diminish, if the public thinks that the Courts are too busy or somehow disinterested in resolving disputes because of the overwhelming burden of criminal cases on the Court’s workload.”
On striking the right balance between encouraging and compelling the use of ADR, Wallace notes: “almost all horses that are led to water will drink from the ADR well, but compulsion versus coercion is a delicate balance.” He sees potential for AI to improve access to ADR services, particularly for self-represented parties.
Wallace anticipates a shift in the ADR profession, with more women and non-lawyers becoming mediators and the age of those with advanced qualifications decreasing. “This change in personnel will lead to a change in the role of ADR, with growth beyond the traditional sectors that embrace ADR.”
He envisions a collaborative model: “if Judges knew that ADR professionals would work collaboratively with the Judges to improve access to justice, and improve the speed, efficiency and reliability of the process for resolving disputes, then I think this would create the greatest opportunity for improvement and success.”
Polly Pope – Barrister
Pope considers that ADR is well-established in commercial disputes and the construction sector where adjudication offers fast and binding outcomes. She notes that “law reform would be required” for use of the adjudication model across other sectors. “In the meantime, the New Zealand Dispute Resolution Centre (NZDRC) has designed a contractual adjudication process, which allows parties to a contractual dispute to decide to opt in to an adjudication process.”
Pope identifies a “pressing gap” in procedural innovation among lawyers. “Every litigator needs to understand the availability of ADR,” she says, adding that suspicion of ADR proposals is often misplaced. “Lawyers need to be serious about their duty to inform clients of alternatives to litigation, and if there is a quicker or less expensive option available then there may need to be a very good reason to turn that down.”
Pope highlights innovations such as fixed-fee services and contractual adjudication. On oversight of ADR service providers, she stresses the importance of qualifications, noting that Arbitrators and Mediators Institute of New Zealand (AMINZ) accreditation and institutional peer review help to maintain standards.
In the future, Pope predicts that AI will “revolutionise aspects of dispute resolution,” but warns of sovereignty risks if New Zealand-specific platforms are not developed. “In my experience AI is already being used by self-represented parties in adjudication to prepare documents. When AI is channelled into apps and platforms specifically tailored for New Zealand dispute resolution processes there is likely to be significant improvements in access to justice.”
Michael Jamieson – Manager at The ADR Centre
Jamieson supports the recent changes to the HCR but believes a cultural shift is needed: “It would be helpful if instead of asking “Have you tried ADR?’, judges ask, ‘Why haven’t you tried ADR?’ and there could be adverse costs awards or sanctions against parties who have refused to engage with ADR processes without good reason.”
He notes that commercial parties typically respond positively to ADR, while some litigators remain reluctant. “ADR helps all cases move towards resolution,” he says, especially where ongoing relationships are involved. He adds that “some lawyers overlook their obligation under section 13.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to advise their clients of alternatives to litigation.”
In an ideal setting, Jamieson anticipates ADR will become “integral and complementary to the Court processes,” supported by AI-driven innovations that streamline outcomes and improve access to justice. He sees a growing role for culturally responsive practices, including tikanga Māori, Pasifika and sharia-based approaches.
Looking ahead
The perspectives shared by Wallace, Pope and Jamieson reflect a shared understanding that ADR plays a key part in a responsive court system. The reforms under the HCAR, alongside the Ministry of Justice’s consultation, signal meaningful progress in embedding ADR into the life cycle of a claim. While not all disputes will be suited to ADR, there is potential for it to be utilised in cases where it could deliver meaningful benefits like saving time and reducing costs. Drawing on Kelly’s “suite of powers,” a collaborative approach from judges, lawyers and rule-makers may be key to easing the burden on the courts and realising the full potential of ADR.
1. markkelly.co.nz/wp-content/uploads/RP24-25-Mediation-and-the-Senior-Courts-.pdf