Development of mediation typifies Kiwi approach
||Mediation is a developing constitutional tradition of New Zealand and the leading alternative to litigation, but it still represents something of a ‘number 8 wire’ response to civil disputes, says legal historian Dr Grant Morris.
Dr Morris, a senior lecturer at Victoria University, says a key feature of mediation in New Zealand is that it has to a large extent been implemented and developed by the state through legislation. Mediation has been primarily a top-down development, not a bottom-up, grass roots community response to civil disputes as occurred in the United States during the 1960s and 70s, he says.
“The lead has come from Government and Parliament, and Parliamentary supremacy is a key constitutional tradition in New Zealand.”
However, Morris told Law News that despite mediation reflecting government initiatives since the 1970s, it has also been somewhat ad hoc and pragmatic in its development, in that mediation has responded to problems as they arise, in keeping with this country’s ‘number 8 wire’ mentality. “It’s not systematic,” he says, “there has been no overall plan of how to implement it.”
As a result, mediation in New Zealand lacks the localised scholarship or theoretical basis seen in some overseas jurisdictions, with a limited amount of research into its use here.
His comments followed a presentation he made at a recent conference in Wellington, “Unearthing New Zealand’s constitutional traditions”, where Morris discussed the history of mediation in response to Justice Winkelmann’s 2011 defence of the civil justice system. Justice Winkelmann had then argued that mediation could only be a complement to the court system, and adjudication or rights through the courts remained at the heart of the justice system.
But Morris says mediation has nonetheless been developing as a constitutional tradition in New Zealand, as part of statutory regimes, and not just as an add-on. “It has been encouraged and promoted by our elected representatives.”
He questions Justice Winkelmann’s defence of the efficiency of the civil justice system in terms of the use of courts, his opinion being: “It is still too expensive and too slow for the average citizen.”
Morris says while mediation will never replace the crucial role of courts, which can set precedents and specifically uphold rights, it still plays a pivotal role. He says the use of mediation continues to grow but at a slower rate compared with the exponential growth in the 1980s and 90s, partly because it has already been incorporated in obvious areas.
However, while the ADR (alternative disputes resolution) advocates wanted to see much more use of mediation, it has its limits, for instance due to its confidential nature and inability to set precedent.
Mediation in New Zealand is particularly linked with legal areas that have specialist courts and tribunals like employment law, family law and environmental law, where mediation had proven successful and challenged litigation’s dominance, Morris says.
Morris also draws attention to the benefits of mediation in the leaky housing disputes where the process has “shouldered the burden of resolving one of New Zealand’s biggest legal crises”. According to Ministry of Justice statistics, 85 percent of such claims had been settled by mediation without requiring adjudication.
Morris says there may be pockets of resistance among some lawyers to the increased use of mediation, but that on the whole there is a lot of support for it too. “Ultimately the lawyer has to ask what is best for their client and often that is avoiding court through mediation.”
He adds that while the potential for mediation to be used in all civil court cases had been highlighted in a number of reports in the late 1990s and early 2000s, in order to relieve pressure on the courts and reduce expense and delays, the various recommendations had not been comprehensively implemented. He suggests there is likely some territorial tension between those promoting the traditional court approach and pressures from ADR lobbyists to see more mediation replace litigation.
While the legal profession could be labelled conservative when it comes to change, it has also proven to be very adaptable in the last 30 years. Morris says much of the ‘mediation versus litigation’ debate has revolved around a very vague definition of ‘civil justice’. He takes a broad view of civil justice, incorporating for example family, environmental and employment law and their specialist courts (not just the High Courts and District Courts). In particular, family and employment law have been the standard bearers for mediation as in both areas the preservation of on-going relationships is of paramount importance.
While mediation is now part of many specific statutory regimes, an important exception to that is its increasing use in commercial law. Morris, who supports the use of mediation in this area, says there is little research on the extent of its use. This created a major hurdle for those attempting to analyse the development of mediation in New Zealand’s legal system.
“Mediation in commercial law is one area where the state seems reluctant to take a leadership role. This has probably contributed to the particularly ad hoc growth of private mediation in relation to commercial disputes, which make up the majority of civil cases,” he suggests.
Morris believes there is a need for more research into mediation generally, including an attempt to better measure its benefits, for example in reducing costs.
Ultimately Morris thinks it unlikely that mediation will seriously challenge adjudication’s privileged position in New Zealand’s legal system. “If that were the case it would have done so by now.” As of 2013, the adversarial system remains dominant, demonstrating the limitation of any potential challenge by mediation to New Zealand’s adjudicative constitutional traditions.
Instead mediation and litigation will continue to co-exist and, in most cases, complement one another, Morris says.