Consultation sought on practice direction - mediations and other ADR in the Environment Court

Consultation is sought with relevant professions and other interested parties concerning a possible practice direction that the Court is considering in order to improve efficiency in its mediation service, and the timeliness and quality of outcomes.  Responses are sought from interested parties, addressed to the Registrar, by 31 May 2013.

DRAFT DIRECTION

Pursuant to s 251(2), s 268, and s 269 of the Resource Management Act 1991, the Acting Principal Environment Judge is contemplating directing as follows:

Following Clause 3.2.4 of the Environment Court’s Consolidated Practice Note 2011, all parties at mediations and other alternative dispute resolution sessions are to be represented throughout by a person or persons holding full authority from the party to settle the dispute or the issues at stake.  Any parties desiring not to be so represented shall adhere to the requirement of Practice Note paragraph 3.2.4.3, and give not less than seven days written notice to the Court and all other parties prior to the mediation.  The Mediator will consider the request and will also refer it to the case managing Judge.  The Acting Principal Environment Judge has directed that mediations not proceed in such circumstances unless the case managing Judge is satisfied that there are special reasons in the context of the particular mediation.  A general policy of any party against appointing a representative with full authority to settle will generally not be acceptable to the case managing Judge. 

Background

Section 268 RMA authorises the Environment Court to conduct mediation, conciliation, or other procedures designed to facilitate the resolution of any matter of before or at any time during the course of a hearing.  This power is extensively used, and results in resolution of the majority of cases lodged in the Environment Court .

The Environment Court has promulgated a Practice Note, updated to 2011.  Section 3.2 concerns protocols for Court-assisted mediations.  Clause 3.2.4 provides as follows:

3.2.4 Representation and attendance at mediation

3.2.4.1 Parties may be represented by one or more persons who may have particular qualifications.  The names and contact particulars of such persons shall be provided to the Court and to other participants in the manner required by the Court’s Registry. 

3.2.4.2 Each party shall have at least one representative who is present through all sessions and who is fully authorised to participate, for instance by answering questions and cooperating in the mediation in any appropriate manner.

3.2.4.3 Where a party appoints a representative to attend the mediation, the party will be taken, unless express advance notice to the contrary is given to the Court and all other parties, to have given that representative full authority to settle the dispute or the issues at stake.

That notice is to be given not less than seven days before the scheduled date.  Where such authority is not given, the mediation shall not proceed unless all parties and the mediator agree to proceed on that basis. Bodies such as councils, corporates, and groups are encouraged to provide their representatives with full delegated authority to settle.

Section 269 RMA provides that, except as expressly provided in the Act, the Environment Court may regulate its own proceedings in such manner as it thinks fit.  It also provides that Environment Court proceedings may be conducted without procedural formality where this is consistent with fairness and efficiency.  The Court interprets “efficiency” as including “cost-efficiency”.

Section 251 RMA provides that the Principal Environment Judge is to be responsible for ensuring the orderly and expeditious discharge of the business of the Court. 

The Acting Principal Environment Judge, after consultation with the Judges and Commissioners of the Court, has formed the view in light of these provisions of the Act and the Practice Note, that this Practice Direction is necessary to assist in ensuring the orderly and expeditious discharge of the business of the Court.

Explanatory note

Some large parties (eg. Councils, corporate and groups) have embraced the letter and spirit of clause 3.2.4 of the Practice Note, and invariably are represented at mediations by knowledgeable and experienced persons holding full authority to settle.  Members of the Court hold the view that such mediations often produce a high rate of early and cost-effective resolution of proceedings.

In contrast, some other parties do not arrange representation by such delegates.  Mediations involving these parties invariably take longer, have a lower overall success rate, and cost all parties involved considerably more.  For example, some councils advise that any settlement proposal must be referred back to their relevant standing committee so that the position of the Council may be ascertained.  Several issues arise from this :

• The decision about whether to settle is being made by persons not present at the mediation, and not party to the discussions which have taken place or the dynamics of the discussions.
• An agreement made in good faith at mediation can disintegrate when the persons required to provide approval decide against the proposal arrived at by all other parties.
• When an otherwise agreed outcome collapses, there is either a need for a further round (or rounds) of mediation, or the matter proceeds to hearing. This can represent a waste of resources/ costs for the other parties - or additional costs – either or both of which could have been avoided.
• Delays while the parties await the outcome of the unseen deliberations, and potentially further delays in getting the case on for hearing if that is the necessary course.

The Court recognizes that there will be instances where it might not be possible for a large party to arrange fully delegated representation. It presently holds the view however that those instances should only be sanctioned as they crop up, and for good reason offered case by case.

The Court would like to receive the views of professional groups and parties regularly engaged in cases before the Court, and anyone else interested in the topic.

L J Newhook
Acting Principal Environment Judge

26 March 2013