Outcomes of a dispute resolution scheme
In developing or reviewing a dispute resolution scheme, you need to decide how the outcomes of the scheme are given effect, what remedies are available and the rights of review/appeal.
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See also the Aotearoa best practice framework, which covers impartiality of processes and availability of escalation pathways under Standard 3: Impartial.
Aotearoa best practice dispute resolution framework (the Framework)
Enforceability
You need to decide whether the outcomes from the dispute resolution process (e.g., an agreement from a consensual process, or a decision from a determinative one) should be enforceable. This means that if either party does not follow through on what has been agreed, the other party has a method for enforcing the agreement.
If parties agree, the outcome can be set out in a settlement agreement. The agreement is legally binding and therefore enforceable under common law. However, if additional certainty is needed, legislation can state that the agreement reached will be enforceable. In some circumstances, there may be good reason to provide an additional step or safeguard before the agreement will be enforceable (such as requiring both parties to have independent legal advice prior to entering into an agreement).
In some circumstances, it may be appropriate to make a decision from a determinative process binding on one party but not the other unless they agree (eg, where there is a power imbalance between the parties).
A decision to make an agreement enforceable will depend on the:
- context
- policy objectives
- need for certainty
- presence of power imbalances
- nature of the subject matter.
You will also need to decide who the decision-maker will be for determinative processes.
If the outcomes are to be enforceable, the legislation should specify how this will be given effect, such as through the District Court, or a specialist court (e.g., the Employment Court).
Financial awards or penalties
If using a determinative process, you will need to decide whether it is appropriate for the decision-maker to make financial awards or penalties such as damages, compensation or costs. If so, some boundaries will need to be set on this discretion. See:
- Deciding what form of dispute resolution is needed
- Identifying the objectives and scope of a dispute resolution scheme
Rights of appeal/access to justice
Where establishing a new dispute resolution scheme, you should consider the interaction between the scheme and the formal justice system. If a determinative model is being used, you should pay particular attention to access to justice issues.
Parties should generally be able to take their matter to the courts. Decisions to deny or limit access to the courts should only be made in very rare circumstances and need to be specified in legislation.
The guidelines produced by the Legislation Design and Advisory Committee (LDAC) suggest the courts will interpret these legislative clauses (‘ouster’ clauses) strictly and may not always give them their intended effect.
The LDAC Guidelines also state the right to apply to the High Court for judicial review of a decision exists independently of any statutory appeal rights and is affirmed by section 27(2) of the New Zealand Bill of Rights Act.
Chapter 25 of the 2014 edition(external link) — Legislation Design and Advisory Committee