What is mediation?
The Resource Management Act provides for the utilisation of mediation (or any other alternative dispute resolution procedures) at any time after the lodgement of proceedings for the purpose of encouraging settlement. 1174 All parties to a proceeding must participate in mediation, unless the Environment Court grants leave for a party not to participate in the mediation. The Environment Court actively encourages mediation. 1174
Mediation is a form of alternative dispute resolution. Its purpose is to clarify issues, resolve conflicts and/or reach an agreement between the parties without needing to go to court. Mediation allows the parties to explain how they see the problem and their interests. This allows parties to gain an understanding of each other’s positions. Mediation requires the parties to work together to find solutions and reaching an agreement requires compromise. If an agreement is not reached through mediation, the matter will move on to a hearing.
Mediation can be useful in:
- Developing workable and mutually acceptable solutions to disputes
- Avoiding the need for a hearing and associated costs
- Reducing and clarifying issues in dispute, thereby reducing the length of the hearing and associated costs, where a hearing cannot be avoided
- Improving environmental outcomes through exploring a range of options and innovative solutions
- Building healthier ongoing relationships between the parties
Who attends mediation?
All parties to the proceedings will need to attend the mediation. Parties should attend the mediation in person to articulate their concerns and needs. Parties can also bring other representatives to the mediation including lawyers, planners, other professionals or friends.
If you appoint a representative they must have full decision making authority to act on your behalf in respect of the dispute. This means they need to be able to make on-the-spot judgements and decisions and formulate agreements on your behalf. 1174
A mediator will be appointed to facilitate the process. The mediator is an independent intermediary who should act impartially, fairly and objectively and treat the parties in an even-handed manner. The role of the mediator is to assist the parties to arrive at agreement to settle the dispute or issues within it. 1177 They must not give legal advice, offer opinions or coerce parties into agreement. They do not have the power to impose a settlement on the parties.
A mediator may be an Environment Commissioner or a private mediator. Where an Environment Commissioner conducts mediation the service is free.
Who organises mediation?
The Registrar of the Environment Court will arrange the time, date and venue for the mediation. You will generally be provided with at least 15 working days notice of the mediation. If you, or a representative, cannot attend at the time specified a requests to defer the mediation, including reasons, should be made in writing to the Registrar in a timely manner.
How do I prepare for mediation?
Good preparation is vital for effective mediation.
Consider your objectives – what are the outcomes you are seeking to achieve?
Identify your concerns – what are the values you are or are not prepared to compromise?
Identify other party’s concerns – without compromising your fundamental values, what can you offer the other party to meet some of their needs?
Gather information to help explain your views, this may include expert information.
How does mediation work?
The format of mediation sessions will vary depending on the mediator and the issue to be addressed. However, sessions will normally include the following steps:
- Welcome, outline of the role of the mediator, introduction of the parties and agreement on the process to be adopted.
- Each party will provide an overview of how they see the issues in dispute
- The mediator will summarise the issues of concern and areas of agreement or disagreement
- The mediator will facilitate discussion about the issues to ensure that each party understands the other's views
- For each issue, the parties will be asked to identify how the issue could be resolved
- The parties will then be encouraged to assess whether the proposed solutions would work in practice
- Where possible, the mediator will assist the parties to reach agreement on the preferred solution
- Parties are expected to cooperate in good faith in attempting to settle the dispute.
Mediation is a confidential process and communications in the context of mediation are ‘without prejudice’. This means that discussions during mediation do not affect your legal rights if agreement is not reached and the dispute proceeds to court. What is discussed or disclosed in a mediation cannot be referred to or relied upon in any other proceedings in the Court. 1194 However a settlement or agreement reached through mediation may be legally enforceable. 1195
What happens after mediation?
If agreement is reached on some or all matters, it will be formalised in a draft consent order to be presented to the Environment Court for approval. The Court will review a consent order to ensure it is consistent with the purpose of the RMA, any relevant policy statement or plan, and the terms of the original proceedings that were under appeal. The Court may then make the consent order to recommend modifications to the parties.
If agreement is not reached on some or all matters, the proceedings will be set down for hearing.
What costs are involved?
The Environment Court provides a free mediation service (where a Commissioner is used), so the only costs involved will be your attendance and that of any advisors. If you decide to use a private mediator, you will need to pay his or her fee which may be shared amongst the parties.
Section 268A Resource Management Act 1991
Environment Court Practice Note 2011, 18.104.22.168
Environment Court Practice Note 2011, 22.214.171.124
Environment Court Practice Note 2011, 126.96.36.199
Last updated at 11:22AM on January 8, 2018