Court-related disputes can be challenging, but the Māori Land Court offers alternatives to traditional litigation. Alternative Dispute Resolution methods, such as mediation, can be less adversarial and more focused on resolution, providing an opportunity to incorporate tikanga and promote mana enhancing solutions for participants. This article introduces the Māori Land Court mediation service and provides key tips to navigating this process.
Mediations generally
Mediation is both, a consensual and confidential dispute resolution process, which means that both sides must agree to mediate. A mediation involves an independent and impartial mediator who assists negotiations between the parties to reach a resolution. The process can be tikanga-based, led by values, beliefs, and practices of those involved.
In contrast to a Court hearing, the mediator’s job is to facilitate the process to establish and refine the core issues and options to be explored without the formal procedures and restraints of a Court hearing. The mediator is not a decision-maker. The process of mediations will vary slightly based on the mediator, but generally, will include the following:
Process
- Application for Mediation – If your dispute involves Māori land, an application can be made to the Māori Land Court for mediation. All parties to the dispute must agree to mediate the matter.
- Appointment of Mediator – A mediator is then appointed. Currently, the Māori Land Court mediation service is facilitated by Māori Land Court Judges. Over time, this will be extended to non-judicial mediators who have the skills to resolve disputes over Māori land. Importantly, the Judge that mediates your matter will not be the judge that decides the matter in Court if mediation is unsuccessful.
- Date, time & venue – A suitable time, date and venue will then need to be confirmed. This is an opportunity to consider the most appropriate forum for the dispute – is a Marae best appropriate or an alternative neutral venue.
- Agreement to mediate – Once a mediator is appointed, they will generally require parties to enter into a formal agreement to mediate. Generally, this ensures the Parties understand the process of mediation, the rights each party have and importantly, that the parties formally commit to the process. This usually includes a provision setting out that parties will co-operate and use their best endeavors to reach a resolution.
- Pre-mediation hui – Prior to mediation, a pre-mediation hui is usually held with the parties (and their respective lawyers). The purpose of a pre-mediation hui is to help the mediator get a real understanding of the issues at hand. This is also an opportunity to cover off any tikanga that will be followed on the day.
- On the day – On the day, the mediator will explain the process for mediation, including any tikanga practices that have been agreed on. If an agreement is reached between parties, the mediator will record the terms of the agreement which is then signed by the parties and provided to the Māori Land Court. Once signed, the agreement will be binding on the parties. From there, a mediator will provide a report to the Court notifying the Court of the outcome. Parties can then consider next steps, including whether to resolve the dispute through Court or try mediation again.
Conclusion
One of the primary benefits of a mediation process is the opportunity to meet kanohi ki te kanohi in a safe environment, guided by tikanga. Like any dispute resolution process, it requires hard work, and some give and take by all parties involved. But above all else, it is a valuable opportunity to display collaboration, to listen, and to kōrero, all whilst maintaining the ability to contribute to overall process and potential mana enhancing resolutions.
The Māori Land Court website provides helpful information on the process here. Our whenua Māori team at McCaw Lewis are well-equipped to assist you with any pātai or matters relating to mediation, including assisting you through a mediation process – start to finish. Feel free to give us a call.
