Identifying your dispute resolution scheme's objectives and scope
This page discusses the objectives of a dispute resolution scheme and the scope of issues it can address.
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Throughout the scheme development process, you will need to keep in mind the various objectives that Government may be trying to achieve through the scheme. Resolving disputes effectively is clearly an important aim in itself, but the Government and users also have an interest in the quality of the outcomes achieved as well.
The Employment Relations Act 2004 (at section 101)(external link) sets out the object of the dispute resolution Part as being:
(a) to recognise that, in resolving employment relationship problems, access to both information and mediation services is more important than adherence to rigid formal procedures; and
(ab) to recognise that employment relationship problems are more likely to be resolved quickly and successfully if the problems are first raised and discussed directly between the parties to the relationship; and
(b) to continue to give special attention to personal grievances, and to facilitate the raising of personal grievances with employers; and
(d) to ensure that the role of the Authority and the court in resolving employment relationship problems is to determine the rights and obligations of the parties rather than to fix terms and conditions of employment.
Also consider how the scheme will contribute to meeting the goals of the sector that it supports. This requires an understanding the interests and expectations that different users and stakeholders have for the scheme.
The scheme must clearly define the types of disputes it will address to ensure that its scope (or jurisdiction) is clear. It should include a procedure for referring on matters that are outside its scope, and for turning away inappropriate (eg, frivolous or vexatious) disputes.
The scheme will also need to specify its financial jurisdiction ie, setting limits on the monetary value of disputes able to be resolved through the scheme.
The Disputes Tribunal can currently hear non-technical disputes for claims up to $15,000 (or $20,000 by agreement). The Utilities Disputes Energy Complaints Scheme has a threshold of $50,000, unless the provider agrees to extend this to $100,000 (see the Schemes Rules 7 & 8 [PDF 551KB](external link)).
A determinative scheme is one where a third party decides the outcome. If a determinative scheme is appropriate, you will need to consider the boundaries of the decision-maker’s discretion to make financial awards or impose penalties (eg, by setting a maximum amount).
The Real Estate Agents Disciplinary Tribunal(external link) has quite extensive powers, including imposing penalties up to $15,000 for an individual ($30,000 for a company) and awarding compensation of up to $100,000.
It might also be reasonable to allow costs to be awarded.
The Utilities Disputes Energy Complaints Scheme allows determinations to include compensation for the complainant of up to $2000 for expenses and inconvenience suffered (see the General Rules 38 [PDF 551KB](external link)).
Setting monetary limits
Matters to consider in relation to costs may include whether:
- costs should be able to be fully or partially recovered
- the conduct of the parties should be relevant
- disbursements (eg, expenses other than lawyer’s fees) should be included
- any cost awards can be challenged.
Cost awards should be reasonable and predictable, so a standard recovery rate would usually be used. The parties may also agree between themselves on how costs will be apportioned before the process begins.
Who to talk to
You should talk to your legal advisors, the Ministry of Justice, and where legislative change may be required, the Parliamentary Counsel Office (PCO) about these issues and what might be appropriate in the circumstances of your scheme.