Bankside Barrister and Mediator Mark Kelly will be presenting his findings from his research project “Should New Zealand’s Senior Courts Have Greater Powers to Encourage, or Order, Parties to Civil Disputes to Mediate?” on Tuesday 4 March. The seminar, supported by Arbitrators’ and Mediators’ Institute of New Zealand and hosted by Russell McVeagh, will feature a panel discussion with some of Aotearoa’s leading voices in dispute resolution – Daniel Kalderimis KC, Bankside Barrister Polly Pope, and Nina Khouri. We speak with Mark about his new research ahead of the event.
How did your research come about?
The relationship between civil mediation and New Zealand’s senior courts, and the way in which that relationship differs from other jurisdictions, has intrigued me for a while. Particularly as to whether there is more that can be done with mediation to address the access to justice challenges in New Zealand’s senior courts. A little over a year ago, I decided to look into it all a bit more closely, and tackle it as a research project.
You reviewed comparable overseas jurisdictions – England & Wales, Australia and Canada. How do their mediation approaches differ from New Zealand’s current framework?
In a word, significantly. All have mediation frameworks which give their senior courts far greater powers than ours to encourage, and order, mediation. Mediation is seen in all as an important part of the courts’ case-management toolkits. Encouraging, and sometimes ordering, mediation is considered to be a way in which the courts can reduce the delays in, and costs of, litigation, and consequently enhance access to justice.
In your paper you propose a suggested framework for greater powers for New Zealand’s senior courts. Can you tell us a bit more about the legislative/procedural changes required to implement your framework?
I think that some relatively simple tweaks to the High Court Rules would make a big difference, and bring our approach into line with that taken in the comparable jurisdictions (and that taken in other courts and tribunals in New Zealand). I do not suggest mandatory mediation. I think we can get where we need to by giving the courts a more subtle suite of powers, including: some “nudges”, a rebuttable presumption that parties will engage in some form of ADR, the power to order ADR if appropriate, and the power to order costs for an unreasonable failure to engage.
What can attendees expect from your panel discussion with Daniel Kalderimis KC, Polly Pope, and Nina Khouri?
I am excited to find out! They are three of our finest, and most generous, minds in dispute resolution. They will be talking all things senior courts, mediation, and access to justice, and I expect it will be a fascinating session.
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