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Ombudsman outreach in New Zealand

7 August 2011
By Office of the Ombudsman

I have just come back from the AMINZ (Arbitrators and Mediators Institute of New Zealand) annual conference in Auckland New Zealand from 4 to 6 August. Much of the conference is directly relevant to the work I will doing as Ombudsman, and I will tell you about some of the sessions I attended. This was my first event as the Ombudsman, and it was interesting talking to my colleagues, some of whom knew nothing of ICANN and some who could ask the questions about new gTLDs. A number of my mediator and arbitrator colleagues are on the local Domain Name panel as mediators and adjudicators and expressed some interest in my role.

The first session I attended was the keynote address by a well known American mediator called Robert Benjamin. He deliberately provoked the listeners to question many ideas which they have been taught about the correct approach to mediation. I certainly did not agree with everything he said, but it is always useful to have your preconceptions challenged. His topic was rational decision-making or predictable irrationality.

We had another overseas speaker Michael Lee,who is head of the International Centre for Dispute Resolution based in Singapore. He spoke a number of times on issues in relation to negotiation and also a fascinating insight into how successful companies manage dispute resolution, and the strategies which they used. He analysed this with evidence from the legal budget from a number of substantial companies, and the successful companies spend much less on dispute resolution and lawyers, because of better management of the dispute resolution process.

The conference had a number of sessions on good practice in mediation,and developing a framework for competency and assessment of competency. There appears to be a difference between those who start from the premise that potential academic qualification is necessary, from those who maintain that an exhaustive practical background is more important. I suspect the answer is somewhere in between, but as a mediator perhaps that is inevitable. Again, the debate is important to enable us to reflect on our practice and to learn from the different views.

A particular interest was a session from Peter Jones about construction adjudication as a model for online dispute resolution, discussing models of software to be used for this purpose.I have been appointed as a construction adjudicator in the past, and completed the number of these entirely by exchanges of e-mail, but the models he proposes go beyond this using the Internet forum model, which enables a rapid debate of the issues, with exchanges of all relevant documents in an open and transparent fashion.

It is important as a mediator to take into account cultural factors, and in New Zealand, with both indigenous people and many new immigrants from Asia, we cannot assume that discussions are going to be understood by the other party without some insight into the different cultural approaches. Ngorongo Ormsby talked to us about a bicultural perspective to mediation preparation, with particular reference to Maori concepts of dispute resolution, and placed in this in the context of the Haka used when two groups of Maori meet, to establish the ground rules.

The final keynote speaker was New Zealand High Court Chief Judge Helen Winkelmann, who reminded us that alternative dispute resolution should perhaps be more properly described as ancillary to traditional court litigation.I asked her a specific question on the use of the judicial settlement conference,and she confirmed that a number of judges are uncomfortable with the process, although some have embraced it enthusiastically. She emphasised that mediation has its place, but that jurisprudence requires development of legal principle through properly argued cases and we should not forget this.

All in all, this was a very valuable conference and educative for me.

Chris LaHatte


Office of the Ombudsman