I am at the annual conference of the New Zealand Arbitrators Institute of New Zealand in Wellington New Zealand. This is always a full conference of seminars and training is all forms of dispute resolution. It has an international flavour as the conference is being run at the same time and venue with Advisory Council of the United Nations Convention on the International Sale of Goods, where both arbitration and mediation are strongly promoted as the tools for dispute resolution.
There are many speakers and presenters http://www.aminz.org.nz/Section?Action=View&Section_id=192 and I am looking forward to the presentations on Multi Party mediations and Cultural issues in mediation. We also have a session on the New Zealand Ombudsman offices which is chaired by the New Zealand Ombudsman Dame Beverley Wakem.
On Friday we opened with a traditional Maori welcome, as is the custom in New Zealand. The formal opening was an address from the New Zealand Minister of Justice Judith Collins, who talked about reform of the family Law practice and procedure, with a new emphasis on compulsory mediation before cases are argued before a judge. This was received enthusiastically by the large number of mediators in her audience. I asked a question of her about credentialling, because our Institute has a strong emphasis on ensuring that members are properly trained. It appears likely from her answer that the approved mediators will be required to have appropriate training.
The next two sessions were directly useful to my role as the ICANN ombudsman. Helen Shurven from Australia presented a fascinating paper about the mediation used to settle customary land disputes in Australia and the techniques and difficulties involved. It is very common to have a large number of people present from the indigenous groups, and of course there are government representatives, and often representatives from landowning and mining interests. The logistics of organising a large number to travel to often remote areas of Australia are very costly. But the process is worthwhile, and worth spending the money, because it works. There have been a significant number of settlements reached, but interestingly, they have observed the similar process of negotiation with indigenous people in New Zealand, through the Waitangi Tribunal.
This was followed by a session on why some cultural groups do not complain. Pele Walker from the Human Rights Commission facilitated a session to discuss why Pacific Island people in New Zealand have a very low complaint level to the commission. She discussed the cultural inhibitions, and the need to be most careful in understanding the different cultural values, within the context of Samoan culture in particular. Within ICANN we have many cultural groups and very diverse approaches to discussion and to collective decision-making. Learning how Pacific Island and Samoan people deal with conflict is most important, because it reminds us that the European approach is just another way of dealing with conflict and by no means the only way.
The sessions on the afternoon of Friday were on different understandings of issues within workplace conflict mediation and how the different stories and perceptions of differences can be interpreted. This was presented by the Auckland University mediator, Barbara McCulloch, who is an organisational ombudsman within the University (although she is not allowed to call herself an ombudsman). This was followed by an interesting presentation on recent cases about privilege and without prejudice communications within the context of a mediation agreement. While the law is indigenous to New Zealand, there is a growing awareness that we have to reflect international trends in interpretation of privilege.
Saturday opened with a provocative presentation by a mediator from the United Kingdom, Tony Willis. He was announced as the top commercial mediator in the world, and has an awesome CV and enormous experience. He was interested in the place of commercial mediation within the civil justice system, and has a very pragmatic view that mediation is just another way of resolving disputes rather than the answer to everything. He cited some of the recent research from Dame Hazel Genn, who has published extensively on problems within the civil justice system due to a number of factors such as the impact of a ever increasing criminal workload for the courts tightening resources for the civil justice cases, problems with the civil procedure rules and in particular the explosion of disclosure and discovery rules. Tony Willis is of the view that a mediator is just a mediator and use of titles such as transformative or facilitative or evaluative limits the tools which a mediator can use. His experience, he frankly concedes, is primarily commercial and international mediation. The point of those mediations is often simply money. Some of the other purposes of mediation for family or community issues may well require other approaches, but I do agree that mediators must look at such labels, as resources rather than restrictive titles.
The afternoon session was from my New Zealand Ombudsman colleagues. The theme of the panel discussion was “Ombudsman How are Global Trends Reflected in New Zealand? The leading speaker was the New Zealand Parliamentary Ombudsman, Dame Beverley Wakem, followed by Karen Stevens, Judi Jones and Deb Battell, who are respectively the Insurance and Savings Ombudsman, Electricity and Gas Commissioner and Banking Ombudsman. It is always valuable to see how my colleagues approach their work on a local level and how they ensure that they meet international standards of practice in ombudsmanship.
We concluded with an address by the Honourable Sir Geoffrey Palmer SC, who discussed international mediation. Ultimately his conclusion is that it is very valuable when the parties cooperate, but he cited a number of areas such as International whaling and the current Syrian conflict where mediation just has not worked.
I like to think that the New Zealand Arbitrators and Mediators Institute runs one of the best conferences in the world in terms of scholarly papers, deep and interesting questions of speakers, and importantly the fellowship of our members. Our executive director Deborah Hart excels herself with each conference, and it is a valuable part of my year for the learning and fellowship.