In 2022, the Rules Committee issued their report ‘Improving Access to Civil Justice’ (the Report). The Report set out the Committee’s recommendations for addressing the various barriers to accessing justice in New Zealand. The Committee defined access to justice in institutional terms – individuals’ access to the Courts to have their rights vindicated.

But there was one glaring omission – the Report included no discussion of the role mediation could play in improving this access to institutional justice, perhaps implicitly suggesting that it viewed mediation as a separate and alternative process which must sit outside of institutional, Court-centric justice.

That approach is consistent with the traditional view of mediation as an alternative option for parties to consider (or not consider). But this traditional view ignores the great opportunities that exist to integrate mediation into the institutionalized system of civil justice and improve access to those institutions.

At the recent AIMNZ Conference: Access to Justice, we put forward three proposals for how mediation could be used to assist with the access to justice problem.

The first proposal was directed at encouraging parties to consider mediation more actively in the Court process by amending the matters to be considered at the First Case Management Conference. The CMC process is not operating as intended. Schedule 5 of the High Court Rules 2016, which sets out the matters for consideration at the First CMC, directs the parties to consider whether the matter is appropriate for ADR. However, this is often treated as no more than a tick box exercise. We suggest the amendment of Schedule 5 to incorporate additional questions for the parties to consider – such as, if not, why not? What needs to occur for mediation to be facilitated?

This proposal is reflective of the traditional view of mediation as alternative. The second and third proposal, however, are directed at the integration of mediation into the Court process itself. With these proposals, the Court remains the arbiter of the ultimate dispute, but mediation assists with clearing the noise and allowing the Court to undertake its important function. We propose the following ways to practically achieve this integration:

1. ‘Expert Facilitation’: A vast amount of the High Courts time is taken up dealing with extensive expert evidence. This is an area where mediation can assist. We have proposed the introduction of a process which we have called ‘Expert Facilitation’ which could be used to facilitate discussions between experts to agree, or if agreement was not possible, to better understand and communicate differences between experts to the Court and the litigants.
   
   
2. ‘Issue Specific Mediation’: Our second proposal introduces what we have called ‘Issue Specific Mediation’. In Issue Specific Mediation, the parties would not attempt to resolve the underlying dispute, rather, the aim would be to agree on preliminary matters which could include – an agreed statement of fact, an agreed list of issues for the trial and/or matters to simplify discovery.

These three proposals and their rational are more fully discussed in the paper, ‘Does compromise, compromise justice? The Role of Mediation in Access to Justice’.