Dispute Provisions
Question: Should mediation and arbitration be the primary means for dispute resolution?
39 submissions were received. 35 supported the question, while 4 did not support.
While the majority of respondents supported both mediation and arbitration, there was also significant support for just mediation and not arbitration. The rationale for this being, that arbitration lacks transparency, is subject to the decision of a possibly biased or non-expert adjudicator, and due to the lack of case-law precedents is subject to uncertainty. It was suggested that arbitration be only by mutual agreement, and also adjudicated by an expert panel.
There was significant support of the need for clear criteria for the processes, and appointment of mediators/arbitrators. There was also support for the adoption of the NZS 3910 Conditions of Contract Code mechanisms for dispute resolution.
There was strong support for the availability of recourse to the District Court if mediation and/or arbitration failed, and then the ability to appeal to the High Court on points of law.
Question: Should there be a prescribed timeframe for mediation and arbitration? If so, what should it be?
22 submissions were received. 21 responded YES, and 1 responded NO.
Specific timeframes were suggested by respondents, ranging from 10 working days to 3 months to no prescribed timeframe. The most consensual (only 3 submissions) was that of 40 working days. Of note, a question was posed by one submission: what would happen if the timeframe lapsed?
Question: Is the District Court the appropriate body for final recourse? Should it be the Environment Court?
34 submissions were received. 29 supported the District Court. 5 supported the Environment Court.
Those who favoured the District Court suggested it was the most appropriate body as issues most likely to be in dispute, e.g. "reasonable" conditions and issues relating to operational and business matters; are under its prerogative. It was suggested that the Environment Court was not suitable as it only covers RMA issues and these have no bearing on Road/Utility issues. It was also suggested the Environment Court was overburdened as it is.
Those who favoured the Environment Court as the ultimate authority suggested that it is the appropriate body as it has a good understanding of community, amenity, roading and road safety issues and also has experience in issues of cost and compensation.
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