Auckland firm does its bit to build bridges

Auckland law firm Gaze Burt recently played host to a group of overseas lawyers and judges – giving them an overview of our legal system and bringing them up to speed on recent trends in law and dispute resolution here. But what was perhaps a bit different about this occasion was that the group was part of the Malaysian Muslim Lawyers’ Association, and that the lawyers and judges in question practise or sit in the Syariah Court of the State of Terengannu, which exists in parallel to the civil courts as part of Malaysia’s dual legal system. The group was led by Dato’ Zainul Rijal Abu Bakar, President of the Association.

Gaze Burt

Syariah is the Malay spelling of “Sharia” – its courts deal exclusively with Islamic law and operate parallel to the civil, federalised courts. Syriah courts have limited jurisdiction over all Muslims in Malaysia, primarily in family law matters and religious observances, and can pass generally only limited sentences or fines.

The visiting delegation included ten judges, including the Terengannu State Syariah Court Chief Justice. Six women lawyers were amongst the lawyers in attendance, many of whom practise in both the Syariah and civil courts. Leading dispute resolution specialist from Australia, David Newton, has worked with the Association in Malaysia on a number of occasions. A former corporate lawyer, he holds a number of Australian Government-appointed advisory roles, including under the Franchising Code of Conduct, Oil Industry Code and Horticulture Code of Conduct, and has also worked as a mediator abroad.

Mr Newton had arranged for the Association to visit Australia on past occasions but this time around they were keen to come to New Zealand in order to learn more about how mediations are conducted in various contexts here. So he brought them to Gaze Burt in Auckland and thence around the country for an educational (and at times eye-opening) introduction to dispute resolution mechanisms in use in New Zealand.

Law News had the chance to speak with Mr Newton and Gaze Burt partner David Munn about what the visit meant – both for those visiting and for those hosting – and how, if only in a small way, a better cross-cultural understanding was achieved.

The group was keen to learn about New Zealand’s use of mediation in the context of family, employment and religious disputes. Malaysia has long used forms of mediation in its courts – with court mediation officers meeting with parties to a dispute before a matter goes before a judge – but changes have recently been made to how mediation is used in civil and Syariah courts. In the past, Mr Newton explains, court-ordered mediations had a rather prescriptive flavour (compared with the more facilitative-type processes with which we may be familiar), leading to complaints against the mediation officers. The new approach is focussed more on helping parties to a solution (which has led to a reduction in complaint numbers), but the group was still keen to learn and improve.

“I think one of the most important things members of the Association took away from their time here was a focus on the recent development of collaborative law in New Zealand, particularly in the family context,” says Mr Munn.

“Gaze Burt’s family law Associate, Rebecca Roukema, gave a very good presentation on this topic and they asked her lots of questions! Relationship breakdowns can be very complicated in Malaysia and there can be a cross-over of the civil and Syariah jurisdictions if the parties to the marriage were of different faiths – i.e. Muslim and non-Muslim.”

The group was very interested in whether New Zealand courts or mediators have to deal with separations where more than one faith background is involved, and, in particular, how questions about in what faith a child should be raised going forward are resolved. In Malaysia, there can be a conflict of jurisdiction between the civil and Syariah systems in such cases. While the interests of the child are obviously the guiding principle in New Zealand family disputes, in Malaysia those of different faiths and backgrounds can have different views as to what is best for the child, and this generated much discussion.

Other areas of particular interest included cross-cultural relations in terms of land and dealing with racial and religious conflict.

“As their questions unfolded, you could see where their interest was,” says Mr Munn. “An overview presentation on New Zealand’s judicial structure (given by Nathan Tetzlaff of Gaze Burt) briefly touched on the Waitangi Tribunal but it sparked a number of questions about Māori land, which in turn led to discussions about the diverse ethnic population in Malaysia and rights including ‘positive discrimination’ rights as between the different groups represented there.”

The group also spent time in Wellington, where, among other visits, they learnt about the Government Centre for Dispute Resolution at the MBIE. The group was impressed by the Centre’s trial project to rationalise government-provided dispute resolution mechanisms, although apparently this kind of a task would be more difficult in federal Malaysia. For any readers who have a strong sense of Trans- Tasman rivalry, they will be pleased to hear Mr Newton also giving praise to this initiative and to New Zealand’s approach to mediation in our family courts and employment courts in general, calling it “impressively advanced”.

“New Zealand also does a very good job of protecting the integrity of the mediation process. In Australia, especially in commercial matters, a retired judge or senior barrister is often appointed as mediator and comes in to do some head-knocking. New Zealand seems to have a clearer understanding of what mediation truly is and is applying it with integrity in the family and employment areas,” he says.

Mr Munn found discussions with members of the Association “refreshing” and says that lawyers on both sides of the table had “a strong desire to gain more understanding”.

“We need more of that given what’s going on in the world today. Part of our culture as a firm is a focus on building relationships – we always try to keep that to the fore and this visit was a perfect example of that.”

“If you are more aware of where people of different cultural backgrounds are coming from, you can move through a multi-cultural environment, like New Zealand is today, more comfortably and with a better understanding of those around you.” 

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