APPENDIX 6
SOME EXISTING STATUTORY PROVISIONS FOR ADR
The New Zealand statute book contains clauses of various kinds to provide for resolution of disputes other than by, or in addition to, litigation in the courts. Leaving aside provisions prescribing arbitration under the Arbitration Act 1996, statutory provisions for ADR fall into 2 broad categories:
A Enactments providing for use of ADR, but without prescribing procedures
In this category, there are 3 subgroups:
(i) enactments that provide for the use of ADR, but without prescribing the procedure or giving guidance on how the process is to be conducted;[1] examples include:
- Education Act 1989, section 115
- School Trustees Act 1989, section 22
- Resource Management Act 1991, section 99A (pre-hearing) and Schedule 1, clauses 3A and 8AA
- Privacy Act 1993, sections 74, 76
- Injury Prevention, Rehabilitation, and Compensation Act 2000, section 296
- Local Government Act 2002, section 16
- Telecommunications (Interception Capability) Act 2004, section 19
(ii) enactments that provide for delegated legislation to prescribe dispute resolution:
- Police Act 1958, section 64
- Commodity Levies Act 1990, section 11
- Electricity Act 1992, section 172D
- Gas Act 1992, section 43G
- Industry Training Act 1992, section 48
- Modern Apprenticeship Training Act 1992, section 22 (code of practice)
- Bio-security Act 1993, sections 96, 142
- Animal Products Act 1999, section 118
- Wine Act 2003, section 89
(iii) enactments empowering a court or tribunal to propose, order, or assist with ADR, for example:
- Treaty of Waitangi Act 1975, Schedule 1
- High Court Rules, rules 429, 442
- Resource Management Act 1991, sections 267-268
- District Courts Rules 1992, rules 443, 434
- Te Ture Whenua Maori Act 1993, sections 26A-26ZA
- Employment Court Regulations 2000, regulation 54
- Family Courts Rules 2002, rules 52, 292-296, 349-351
B Enactments that are prescriptive
Enactments that set up a process for resolution of disputes that is, to varying degrees, prescriptive and more or less self-contained include the following:
- Sharemilking Agreements Act 1937, section 3 and Schedule
- Police Act 1958, Schedule 3
- Forest and Rural Fires Act 1978, sections 64-65
- Family Proceedings Act 1980, Part 2
- Residential Tenancies Act 1986, sections 86-90
- Children, Young Persons, and their Families Act 1989, sections 170-177
- Education Act 1989, section 10
- Human Rights Act 1993, Part 3
- Health and Disability Commissioner Act 1994, section 61
- Fisheries Act 1996, Part 7
- Employment Relations Act 2000, sections 144-155
- Injury Prevention, Rehabilitation, and Compensation Act 2001, Part 5
- Construction Contracts Act 2002, Part 3
- Weathertight Homes Resolution Services Act 2002, sections 13-55
- Maori Television Service Act 2003, section 17, clauses 13-20 Schedule
- Social Workers Registration Act 2003, sections 71-73
- Retirement Villages Act 2003, Part 4
- Building Act 2004, section 398 (linked to Construction Contracts Act 2002 and Weathertight Homes Resolution Services Act 2002)
- Maori Fisheries Act 2004, Part 5 (linked to Te Ture Whenua Maori Act 1993)
- Maori Commercial Aquaculture Settlement Act 2004, sections 52-55 (linked to Te Ture Whenua Maori Act 1993)
- Health Practitioners Competence Assurance Act 2004, sections 82, 126
The examples listed above illustrate the variety of ways in which Parliament has provided for the resolution of disputes other than by recourse to litigation. Analysis of the relevant provisions also indicates that the development of statutory schemes for the use of ADR, though of fairly long standing, has been ad hoc. A number of problems have been identified, including the inconsistent use of labels to identify various forms of ADR, significant and misleading divergence among the various schemes, even when labelled by the same name, and a lack of substantive detail to guide the conduct of the ADR process.[2]
Boulle L and Wade J, Masters Mediation Workshop, Workshop Papers, Bond University, Dispute Resolution Centre, Queensland, 2002
Boulle L, Jones J, and Goldblatt V, Mediation: Principles, Process, Practice, Butterworths, Wellington, 1998
CDR Associates, "Developing Effective Dispute Management Systems" Training Manual for workshop delivered for LEADR NZ 19B 21 June 1997, Colorado, 1997
Folberg J and Taylor A, Mediation-A Comprehensive Guide to Resolving Disputes Without Litigation, Jossey-Bass, San Francisco, 1998
Legislating for alternative dispute resolution: a guide for government policy-makers and legal drafters, National Alternative Dispute Resolution Advisory Council (NADRAC), Department of Attorney-General, Canberra, Nov 2006 (website: http://www.nadrac.gov.au/agd/WWW/disputesresolutionhome.nsf/)
Sourdin Tania, Alternative Dispute Resolution, Lawbook Co, Sydney, 2002
Spiller P (Ed), Dispute Resolution in New Zealand, Oxford University Press, 1999
Footnotes
1 The statute may permit a decision-maker to refer a matter to ADR, as in s 99A Resource Management Act 1991; or it may include a discretionary prompt by requiring a decision-maker to have regard to the desirability of using a specified (or unspecified) method of ADR instead of legal proceedings, for example, Commonhold and Leasehold Reform Act 2002 (UK).
2 Claire Baylis, “Reviewing statutory models of mediation/conciliation in New Zealand: three conclusions”, VUWLR 30.1 (June 1999), 270-294.