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The value of my dispute is under $15,000. Is the Disputes Tribunal a good option for me?
The answer to this question is dependent upon what you are hoping to achieve. The Disputes Tribunal is not mediation or any other form of alternate dispute resolution. It is our lowest court, however some of the more formal court rules and rules of evidence are relaxed to reflect the size of claims that it has jurisdiction over. One rule that it has that is particular to the Disputes Tribunal is that you are not allowed to have any professional representation with you at the hearing. In other words you go there alone without any lawyers. Like any other court or arbitration you are essentially giving control of your dispute over to a neutral person who is called the adjudicator who will listen to both side's evidence and cross evidence and then if the parties are still in disagreement then the adjudicator will make a decision, more commonly known as an award, that is final and binding upon the parties, unless one party wishes to challenge the award in the district court which they can only do on a point of law.
An advantage of the Disputes Tribunal is the cost. The maximum filing fee is $100.00 and you there is no cost for a lawyer as they are not allowed to represent you. Recently the legislation changed so that the Disputes Tribunal could hear matters of dispute up to an amount of $15,000. If you are not concerned about rectifying the relationship between you and the other parties and you are prepared to accept the negative attributes of this tribunal then it will more likely than not be the way to proceed. The biggest attribute of concern for this tribunal is that they are not obliged to follow the strict New Zealand laws of contract. They have the power to effectively amend contracts how they see fit and award accordingly. It is due to this that some people state the awards of the tribunal can be somewhat random, depending upon who you get as your adjudicator on the day. This can be very useful for the not so astute in society that get taken advantage upon, but is a hindrance to the commercially minded and the principled people who are wanting a legally correct result.
The major differences between the Disputes Tribunal and mediation is that in mediation you still have full control whereas at the Disputes Tribunal the control is given to the adjudicator. Most disputes tribunal fixtures are set for a maximum time of two hours. This is generally not enough time to resolve a dispute properly. The parties get to plead their case to the adjudicator and they get to cross examine each other. The process of natural justice applies so the adjudicator can not be with one party without the other being present. One of the major benefits of mediation is the work the mediator can do in private sessions with a partywhich is simply not available to a Disputes Tribunal adjudicator. Put simply there simply is not the time to peal away the layers to get to the heart of the problem. Most adjudicators will give the parties a little time to consider their position to see if they can reach their own agreement. This is about the only similarity with mediation. Very few cases taken to the disputes tribunal actually settle this way due to the process that is followed and thus the adjudicator ends up making the decision for the parties which is then legally binding upon them, unless they challenge it in the district court and then that can only be on a point of law. It is unfortunate that a result of this nature usually leaves both parties feeling aggrieved as they both feel as though they have been hard done by. One thinks they have lost and the other believes that they have not won enough.
Under these circumstances the damage done to the relationship between the parties is usually not repairable. This is the main advantage of mediation over the Disputes Tribunal. Mediation not only addresses the immediate problem but it also addresses the ongoing relationship. If your dispute is between someone of no consequence, such as an unknown person you bought a car off or someone not paying you for a trade service you provided them then the ongoing relationship does not matter. It saddens us when we hear of family members taking each other to the Disputes Tribunal as usually the matter in dispute stated to the tribunal is not the real problem, even though some family members will not admit it. It is not uncommon for the real problem to actually involve another family member that is not directly involved with the Disputes Tribunal hearing. Yes the tribunal will give a result on the day however that will only tear the family further apart and the winner, if one party considers them self to have won will have a hollow victory as the long term family value they have lost due to their actions will never be able to be replaced by any financial sum. Normally the biggest losers in these cases are the completely innocent parties, more commonly known as the kids or the grand kids as they, due to no fault of their own, get to grow up not having that loving relationship with that aunty or uncle or possibly that grandfather or grandmother. Think about the relationships you have had with your aunties and uncles, with your grandparents. Do you want your kids to potentially miss out on that love and affection from other family members.
Should you want to proceed with the disputes tribunal then the forms are available from any district court for you to make an application. We sometimes help people with this application. If the dispute is between family members then we will refuse to be involved in the Disputes Tribunal process as we believe that this will not address anyone's long term interests. Due to the nature of our work we can not represent any person at a Disputes Tribunal hearing because lawyers and professional advocates are not permitted to do so by New Zealand law, however we can prepare your case or application for you. We have a fixed fee of $975.00 for this service. The way it works is that you send us copies of all your paperwork for us to review and we then discuss it in a phone call. We prepare a draft application and go over this with you. More often than not this will give cause for you to provide us with some more information. The finished application is sent to you for you to then lodge with your local Disputes Tribunal. You then attend the hearing presenting the material we have prepared for you. |