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disputes

How to prepare for a mediation session

Key Takeaway

Preparing for a Disputes Tribunal hearing in New Zealand involves understanding its jurisdiction and monetary limits, gathering all relevant evidence, and clearly identifying your desired outcomes. The Tribunal's initial focus is on helping parties reach a mediated agreement, with a referee facilitating discussions before moving to a binding decision if no settlement is reached. Application fees apply, but legal costs are generally not recoverable.

Preparing for a Disputes Tribunal Hearing: A Guide to the Process

Dispute resolution is a process used to resolve disagreements between parties. In New Zealand, the Disputes Tribunal provides an accessible and informal pathway for resolving specific types of disputes, often beginning with an attempt to facilitate a mediated agreement between the parties before making a binding decision.

The Disputes Tribunal: Jurisdiction and Purpose

The Disputes Tribunal is an informal forum designed to resolve disputes quickly and inexpensively [Source: Disputes Tribunals Act 1988, s 4(1)(a)]. It deals with civil disputes between individuals, consumers, and businesses. The Tribunal's jurisdiction (the official power to make legal decisions and judgments) is limited by the nature and monetary value of the claim.

Generally, the Tribunal can hear claims for up to $30,000, or up to $50,000 if all parties agree [Source: Disputes Tribunals Act 1988, s 10]. Common types of disputes include:

  • Consumer disputes over faulty goods or services.
  • Disagreements about contracts or verbal agreements.
  • Property damage where one party is at fault.
  • Minor debt recovery.

However, the Tribunal cannot hear claims involving specific matters such as real estate title, wills, or certain employment matters [Source: Disputes Tribunals Act 1988, s 12].

Applying to the Disputes Tribunal

To initiate a claim, an applicant (the person making the claim) must complete and lodge an application form with the Tribunal. This form outlines the nature of the dispute and the desired resolution [Source: Disputes Tribunals Act 1988, s 23(1)]. An application fee is typically payable upon lodging the claim [Source: Disputes Tribunals Act 1988, s 33(1)].

Once a claim is lodged, a Registrar (an official responsible for keeping records and administering procedures for the Disputes Tribunal) serves a notice of claim on the respondent (the person against whom the claim is made) [Source: Disputes Tribunals Act 1988, s 24(1)]. This notice informs the respondent of the claim and the date for the Tribunal hearing.

Preparing for the Tribunal Hearing (Conciliation Phase)

While the Disputes Tribunal does not conduct separate, formal mediation sessions in the same way a private mediator would, the initial part of any Tribunal hearing is highly conciliatory. The referee (the person appointed to hear and decide a claim in the Disputes Tribunal) is required to explore all possibilities of conciliation with the parties, and to attempt to bring them to an agreement [Source: Disputes Tribunals Act 1988, s 19(1)]. This process is akin to mediation.

To prepare effectively for this conciliation phase, and indeed for the entire hearing, consider the following:

  • Gather All Relevant Evidence: Collect any documents, emails, text messages, photos, videos, contracts, invoices, bank statements, or witness statements that support your claim or defence. Organise these clearly and logically.
  • Outline Key Points: Write down a clear, concise summary of your side of the story, including what happened, when it happened, and why you believe the other party is responsible. Identify the specific losses or damages you have incurred.
  • Identify Desired Outcomes: Determine what you want to achieve from the hearing. Are you seeking financial compensation, an item to be repaired, or the return of goods? Be prepared to state your ideal outcome and also consider any compromises you might be willing to make.
  • Understand the Other Party's Position: Try to anticipate the other party's arguments and prepare responses. Being aware of their perspective can be helpful in finding common ground during conciliation.
  • Bring a Support Person (if desired): You may bring a support person to the hearing, but legal representation is generally not permitted unless all parties and the referee agree [Source: Disputes Tribunals Act 1988, s 30].

The Tribunal Hearing: What to Expect

Disputes Tribunal hearings are designed to be informal, and the referee is not bound by formal rules of evidence [Source: Disputes Tribunals Act 1988, s 18(3)]. The procedure for the hearing is determined by the referee [Source: Disputes Tribunals Act 1988, s 18(2)].

  1. Conciliation Attempt: The referee will first try to help the parties reach a mutually acceptable agreement. Discussions during this phase are confidential [Source: Disputes Tribunals Act 1988, s 19(2)]. If an agreement is reached, it will be recorded as an order of the Tribunal [Source: Disputes Tribunals Act 1988, s 19(5)].
  2. Adjudication if No Agreement: If the parties cannot agree, the referee proceeds to hear the case, taking into account all the evidence and arguments presented [Source: Disputes Tribunals Act 1988, s 19(4)]. The referee then makes a decision, which is called an order. The Tribunal has the power to make various orders, including ordering a party to pay money, return property, or carry out work [Source: Disputes Tribunals Act 1988, s 19(5)].

Costs

Applicants are required to pay an application fee when lodging a claim [Source: Disputes Tribunals Act 1988, s 33(1)]. The amount of this fee varies depending on the value of the claim. Generally, legal costs (such as lawyer's fees) are not awarded or recoverable in Disputes Tribunal proceedings due to the Tribunal's informal nature and aim for cost-effective resolution [Source: Disputes Tribunals Act 1988, s 33(2)].

When to Seek Independent Legal Advice

Individuals seeking to understand their specific rights and obligations, or who require assistance with complex legal issues, may wish to consult with a legal professional. Further general information and free advice can be obtained from Community Law Centres throughout New Zealand [https://communitylaw.org.nz/].

Key Resources