Government roles in dispute resolution
A range of roles are played by government, industry and private providers in relation to the creation and operation of an effective dispute resolution scheme. These roles can be described as:
There is also the role of monitoring and evaluation, which may be needed in relation to any aspect of a dispute resolution scheme.
The model of the dispute resolution scheme will determine who performs each of these roles, and the level of direct government involvement. A scheme can be:
- provided by government (eg, government agencies employ dispute resolution practitioners)
- required by government (eg, in legislation) but provided by others (eg, contracted to a private provider)
- encouraged by government but established and provided by others (eg, self-regulated industry bodies and dispute resolution processes).
Government’s involvement in dispute resolution varies. It has strong involvement with framework development (eg, making legislation, regulations, rules and guidelines etc.), but to date has had a lesser role in setting standards. It is often the demander, in the sense that it sees the need for a scheme, but supply can be provided by government directly, at arm’s length, or by the private sector.
Even when dispute resolution processes are established and run privately, government still has an interest. It will expect the performance of these processes and the outcomes achieved to be monitored and evaluated. It will want whatever arrangements are in place to operate in the public interest. Dispute resolution schemes can also generate valuable data and insights into trends and issues arising in the sector or industry that may require government attention.
The GCDR’s role is to support more consistent and coordinated dispute resolution across government. This applies at both the scheme and system level. Its role is to facilitate improvements across all activities that contribute to high-performing dispute resolution processes and schemes.
Descriptions of roles in dispute resolution
The Framework developer establishes the framework within which disputes will be resolved. The framework may include policy settings, legislation, funding approaches and accountability mechanisms.
It is important that the framework is well designed as elements that are not fit-for-purpose may contribute to the emergence of disputes (eg, ambiguous legislative provisions) or constrain effective management of disputes (eg, high fees creating barriers to access).
Framework development activities generally relate to the setting up of a scheme and are core activities of government. While some of these activities could be performed by others, such as an industry or sector body, they are usually performed by government agencies.
Agencies developing or reviewing dispute resolution schemes must have a good understanding of the framework that the scheme will be operating within. The GCDR will be mapping the New Zealand dispute resolution system so that government better understands the wider context in which each scheme operates.
There needs to be clarity about the standards under which a dispute resolution scheme will operate and be assessed against.
Setting and ensuring that professional standards are adhered to by dispute resolution practitioners is the responsibility of dispute resolution professional associations.
Setting standards for the delivery of a dispute resolution service and ensuring that those standards are met are the responsibilities of the agency that identified the need for, and designed, the dispute resolution scheme.
The GCDR will seek to ensure that these standards are appropriate and are being consistently applied across the government dispute resolution system.
The Demander is the party that identifies the need for the dispute resolution scheme. This will generally be the government agency with policy and regulatory responsibility for the sector or industry. For example, if MBIE establishes a new regulatory regime through legislation that requires a dispute resolution scheme (such as the regime developed for the rollout of Ultra-Fast Broadband), it will be the demander of the scheme. While individual industry or sector participants may require a mechanism to resolve their disputes, they are not considered the demanders of the overall dispute resolution system.
Government also holds the collective information about the government dispute resolution system and approaches, as well as what is in the pipeline for the dispute resolution market. The GCDR intends to assist government to develop a more strategic and transparent approach to the dispute resolution market.
The supplier or implementer delivers or operates the scheme. Government may directly administer or run a dispute resolution scheme, or part of it (eg, mediation services provided by MBIE for tenants and landlords), or it may be provided by an industry or sector group, or a private provider (eg, Utilities Disputes Limited for electricity and gas complaints).
There will be a range of options to be considered in planning the implementation of a dispute resolution scheme. The choice will depend on factors such as the volume and nature of the disputes (eg, are they highly technical?) and the willingness and capability of the potential participants (eg, the regulated industry may be well-organised and want to establish its own mechanism).
Some government agencies do not have delivery functions, so will have to find alternatives. If private provision is being considered, it is critical that an assessment is done of the market’s ability to deliver the outcomes being sought (eg, are there sufficient numbers of experienced mediators with the appropriate expertise?). The GCDR is working to better understand the dispute resolution market so government can better anticipate demand and plan for high-quality supply.
Dispute resolution schemes need to be monitored and evaluated on an ongoing basis to ensure that they are operating as intended and meeting their objectives and expected outcomes.
It is also essential that information about the nature of disputes and how they are resolved is systematically collected, anonymised, and shared, to inform others in the sector or industry. This information should be fed back into the policy development process to prevent future disputes. An agency developing or making improvements to a scheme will need to consider what information would be useful, how it will be collected, and by whom.
Monitoring and evaluation processes contribute to the continuous improvement of regulatory systems and help to identify issues that are emerging in those systems (eg, potential regulatory failures like leaky homes). It is also important that the dispute resolution functions across these regulatory systems are monitored and evaluated. This is part of the GCDR’s stewardship role.