Arbitration 

 

The Arbitration process is similar to taking a dispute to court except that it is less formal, less expensive, confidential and can be completed in a matter of weeks rather than months, or years.    It also guarantees a decision.

 

Arbitrations should always be conducted in accordance with the Arbitration Act 1996. While this legislation gives enforceability to the award, stipulates procedures, rules and various other matters, it also empowers the parties to have the arbitration process varied to suit their circumstances or preferences.

 

Any person can be appointed Arbitrator if the parties agree however it is strongly recommended that a suitably trained and qualified person be appointed.

 

If you would prefer to not use my services, or are in another part of the country (I will travel if required) I would invite you to check out the people featured on www.redispute.co.nz.   All of the people on this site are very experienced in real estate disputes, are Members of the Real Estate Institute (AREINZ) and Associates (AAMINZ) of the Arbitrators and Mediators Institute or have a higher status in those organisations.  

  

I can give advice on any aspect of arbitration process without losing my independence. However, I cannot give advice on the detail of the dispute if I am to be appointed as the Arbitrator.

 

Benefits of arbitration include:

 

Prompt.   Usually conducted within a month from the agreement of the parties.
 

Economic.   Considerably less expensive that court proceedings and the parties may each choose whether or not to engage lawyers.
 

Guaranteed.   Unlike mediation, once the parties have committed to an arbitration, there will be a decision.   This can even happen where one of the parties changes their minds and decides to not attend the hearing - not a wise move but it does happen, occasionally!
 

Binding.   Subject to appeals*, Arbitration awards are enforceable not only in New Zealand but in many other countries (against individuals, not NZ companies).
 

*Note:  The grounds for appeal are very limited and are well stipulated in the legislation.  In addition there are some excellent precedents available for those wishing to go down this track.   In fact, the legislation (The Arbitration Act 1996 and Amendments) are in my opinion an example of very well thought out and drafted legislation and can be relied on with confidence.   Certainly it would be foolish to try and restate any of the provisions without an excellent working knowledge of this Act.

 

Confidential. The Arbitration Act stipulates the confidentiality which
can only be breached with the agreement of both parties.

 

The Process

 

Before the hearing. My preference is that the claimant (the person wanting something) provides to the arbitrator and other party, a statement of claim and copies of any documents to be considered. The statement of claim can be quite brief, even less than a page.

 

The situation then reverses with the respondent providing a statement of response and copies of documents.

 

Finally, the claimant can be given a short time to respond addressing new matters brought up by the respondent.

 

The matter then proceeds to a hearing.

 

It is important to be properly prepared when attending an arbitration hearing. To do so, you should:

 

Know what you wish to claim. This includes compensation, damages, interest, costs, etc.
 

Know the strengths and weaknesses of your case.
 

Know the strengths and weaknesses of the other party’s case.  

 

Have an opening statement to give an overview of your claim and reasons you should be awarded your claim. (This can be the statement of claim.)
 

Take all of your documentary evidence.
 

Have your witnesses prepared to state their evidence and be ready to be questioned. Know what you are going to ask them to emphasise your case.
 

Know what questions you wish to ask the other party and witnesses.
 

Be prepared to make a closing statement which should include the strong points of your case and flaws of the other party’s case.
 

While the basic protocols and sequences are important, the main driver should always be to get to the truth of the situation rather than allow formalities to detract from the process.

 

For more information or to use Mike's services, contact Mike 

 

 

Mediation

 

Mediation is generally quite informal and can be completed literally within days subject only to the availability of the parties.   This is in part because there are no requirements for formal preparation by the parties or the Mediator.   In fact, the role of the Mediator is basically to attend the meeting, assist the parties to hopefully reach agreement and, in that event, write it up in a clear and unambiguous manner.   In other words, the cost of a Mediator is generally limited to the time of the hearing.

 

Succesful mediations therefore, as well as being prompt, can be quite cost effective and agreements reached are binding.   It always helps if the parties come together with an attitude of seeking to reach a mutually acceptable resolution.

 

The disadvantage of mediation is that there is no guarantee of a decision.   

 

The mediation process is completely different from that used in an Arbitration.  For this and other reasons it is imperitive that a Mediator never change roles and impose a decision on the parties.  Such an "award" would not and could not be made in accordance with the Arbitration Act and "awards" made without that standing would be of very questionable value as to enforceability would potentially be wide open to appeal.   They could also leave the Mediator open to litigation whereas an Arbitrator enjoys protection similar to that of the judiciary.

 

Further, not only can Mediators not impose a decision on the parties, but they cannot subsequently be appointed as Arbitrators or in any other role that requires them to determine an award.   

  

The skills required of a mediator and arbitrator are quite different which is why many people do not do both.

 

While the parties can agree to appoint any person they choose for either role, it is highly recommended that a suitably trained and qualified person is appointed.   Skilled mediators can achieve very high success rates.

 

Experienced specialist mediators can be found on the site of Real Estate Dispute Resolution Centre http://www.redispute.co.nz/mediation

 

Please call me if you would like to know more, or would like my assistance to find a mediator. 

 

Note:    The terms conciliation and negotiation are used in New Zealand legislation regarding dispute resolution. In simple terms, both of these fall into the mediation category.

 

For more information contact Mike