Understanding the parties to disputes
This page helps you analyse the parties to a dispute, their interests, the outcomes they seek, the relationship between them including if there is an imbalance of power.
Who the parties are
The parties to a dispute are the individuals, bodies or organisations directly involved in the issue.
The parties may be two individuals, or there may be a group of parties, or even several of these groups. A party may be a company or a government agency. It is important to know who the parties are likely to be.
The parties to a family dispute are likely to be the two parents. An environmental dispute might involve the council, local community groups and national interest groups (eg, Forest & Bird New Zealand). Commercial disputes can involve companies, banks and insurance agencies.
Interests can include financial, social, and moral goals or aspirations and cultural beliefs, which are often underpinned by a party’s values and needs. Fears, concerns, and unmet needs can also be important drivers of disputes.
An immigration decision to refuse an applicant permanent residence may be technically correct, but the applicant may feel aggrieved at how they were treated, how the decision was made (eg, delays with no explanation) or communicated (eg, by letter). They therefore do not accept the decision.
Identifying and understanding the interests of the parties may help you to identify the root causes of a complaint or dispute. The interests of the parties may be closely aligned, there may be some overlap or there may be conflicting interests. The interests of parties are likely to influence why each party may come to, and how they respond to, a specific complaint management or dispute resolution process. Interests can also shape views on the appropriateness or effectiveness of the process itself.
The outcomes they seek
There are likely to be a variety of outcomes parties are seeking by engaging in a complaint management or dispute resolution process including:
- speedy resolution of the specific issue
- redressing harm
- maintaining or improving relationships
- maintaining privacy and confidentiality throughout the process
- minimising costs
- flexibility and innovation in the development of solutions
- setting precedent – changing policy, services or products to prevent future disputes.
The specific outcomes that may be sought by parties sometimes become more clear as you gain understanding about the nature of the parties and the types of complaints or disputes they are involved in.
The relationship between the parties
The parties to a dispute may have close and ongoing relationships, such as family members or business partners, or the relationship may be short and only relate to a specific transaction, such as between one-off consumers and vendors or traders.
The context for the dispute may be easily understood, such as a breach of a contractual term, or there may be complex dynamics at play (eg, the breakdown of a close relationship). Even if the dispute appears to be relatively simple, it may represent a breach of trust and confidence in a longstanding relationship.
Disputes between business partners, between tradespeople and suppliers, and between employers and employees can also develop over a long period and raise inter-related issues. For example, a dispute may be over an unpaid invoice, but there may be a history of late or incomplete payments, or misconduct by one of the parties.
A power imbalance between the parties
A power imbalance exists where one party has some form of advantage over the other party, including access to more resources or better information. It can also be where one party has a greater stake in the outcome and thus more to lose if the dispute is not resolved.
There can be an imbalance in power if:
- one party has direct or indirect authority over the other (eg, employer and employee, insurer and insured making a claim)
- one of the parties is seen as having all the expertise (eg, doctor and patient)
- the relationship between the parties is one of dependence (eg, one spouse with an independent income and the other spouse financially dependent)
- there are differences between parties in age, ethnicity, gender, sexual orientation, language skills or employment status.
Factors such as poverty, mental illness, physical incapacity, or living arrangements can also negatively affect a party’s ability to assert their rights or protect their interests.
Tenants in dispute with their landlord, or residents in dispute with their retirement village, may be particularly vulnerable as their future circumstances rest in the hands of the other party. For tenants, a landlord can affect their living arrangements, but a retirement village controls all the needs of its residents including food, cleaning and carer services as well as being their home.
In some circumstances, the nature of the parties and their relationships will be a critical consideration and may determine that a particular dispute resolution approach is not appropriate.
Where there has been violence or threats of violence between the parties the courts may be better equipped to handle the matter. It has been the view that the use of Family Dispute Resolution in New Zealand should be limited where family violence has occurred within the relationship.
Key questions about the parties
- How many parties are involved and who are they?
- What are their interests? Which interests might be shared between the parties? Where might there be competing interests?
- What outcomes are they seeking? Which outcomes might be the most important for each party? Are there any desired outcomes that parties might share?
- What is the nature and history of the relationships between the parties?
- Are the parties on an equal footing? Or is there a real or perceived imbalance of power?
The next page in this guidance is Understanding existing dispute resolution arrangements.