At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues. We use our problem-solving skills in serving our clients on a daily basis.
This article explores the history of mediation and the importance of encouraging mediation.
History of mediation
Mediation is at the heart of the modern alternative dispute resolution (ADR) movement. The development of mediation in New Zealand has been ad hoc and pragmatic and was a response to specific challenges facing the legal system including the expense and delay involved in litigation.
New Zealand’s mediation movement is part of a global trend. The history of mediation dates back to developments in industrial relations in the late 19th century. The modern mediation movement took off in the 1980s and continues to grow.
Academic attention and the formation of professional organisations during the 1980s and 1990s also contributed to the rise of mediation. The two leading ADR professional bodies have been Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) and the Resolution Institute.
Mediation processes began to be incorporated into various statutes. In some areas, such as family and employment law, mediation challenged litigation’s monopoly. However, mediation is unlikely to completely replace litigation as the dominant form of dispute resolution anytime soon.
Commercial mediation
While statutory regimes have been the dominant driver of the modern mediation movement, there has been reluctance to take a leadership role in commercial law mediation. This has contributed to the particularly ad hoc growth of private mediation in relation to commercial disputes, which make up the majority of civil cases.
Historically, commercial disputes have been resolved in the first instance through negotiation. If negotiation failed, litigation or arbitration would commence.
Commercial mediation increased during the 1990s.[1] Many mediations resulted from business people seeking to avoid expensive and time-consuming litigation. It was created to help users resolve disputes. Mediations also resulted from commercial contracts dispute resolution clauses, which stated that mediation would be used in the event of a dispute.
Conclusion
Reports recommended that the courts take a more systematic approach to diverting cases to mediation to relieve the pressure on the court system and reduce expense and delay.[2]
Lawyer have an obligation to inform parties of ADR options throughout the civil procedure process. Rule 13.4 of the Conduct and Client Care Rules provides that a lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available to enable the client to make informed decisions regarding the resolution of the dispute.
These developments have the potential to increase commercial mediation given the dominance of commercial matters in civil cases.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
Mediation is a dispute resolution process that could help to avoid costs and achieve a prompt resolution. Norling Law supports mediation as an efficient way of solving legal issues and offers independent and impartial mediation services.
Wendy has extensive experience as a commercial mediator, including mediations conducted online. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the Arbitrators and Mediators Institute of New Zealand (AMINZ). Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
Reference:
Dr Grant Morris and Annabel Shaw The History and Development of Mediation (online looseleaf ed, Thomson Reuters) at [4.M.3].
Footnotes:
[1] Dr Grant Morris “Towards a History of Mediation in New Zealand’s Legal System” (2013) 24 ADRJ 86 at 97.
[2] Courts Consultative Committee Court Referral to Alternative Dispute Resolution: A Proposal to Extend the Use of Alternative Dispute Resolution in Civil Cases (Department for Courts, 1997); Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004); and K Saville-Smith and R Fraser Alternative Dispute Resolution: General Civil Cases (Ministry of Justice, 2004).
Brent is the Director of Norling Law. He has a wealth of experience in the District Court, High Court, Court of Appeal and Supreme Court. Brent is passionate about negotiating favourable outcomes for his clients and able to implement this in his daily negotiations.
Wendy has over 20 years’ experience in civil litigation in New Zealand with a main focus on construction, insolvency and debt recovery and security enforcement.