What happens once the process finishes?
Court review of consent orders
A consent order is an order of the Environment Court that endorses the agreement reached by the parties during mediation. The Court has the power and responsibility to ensure that a consent order is consistent with the purpose of the RMA, any relevant policy statement or plan, and the terms of the original proceedings.
This 'quality control' helps to ensure the integrity of the mediation process - ie, that issues have not been dealt with superficially or that some parties have been intimidated into agreement. The confirming of a consent order is usually combined with at least the partial withdrawal of the proceedings.
Entering private agreements
A private contract may be entered into by the parties to provide for any aspects of the solution that may not be enforceable under the RMA. Depending on how they are drawn up, they may be legally enforceable as a contract and any disagreements, or breaches, argued in a civil court.
Resorting to litigation
Where there is no agreement or the parties 'agree to disagree' they may proceed to litigation. Complete agreement and/or withdrawal of appeals are not the only measures of success where mediation is concerned. Mediation may provide parties with an improved understanding of the issues or help them gain a new different perspective on a dispute or a positive insight into the attitudes of other protagonists. It can also help the parties isolate, refine and narrow the nature of the dispute. All these outcomes can help reduce Court time and hence costs in the event that the parties proceed with litigation.
A hearing at the Environment Court can be seen as a powerful backstop to mediation as:
- all the issues originating from the dispute will be reviewed
- the formal presence of a Court setting can motivate people to reach an outcome
- the Environment Judge remains completely independent from the matters that may have been discussed in mediation. The Judge will not be aware of any details of the mediation and no blame will be attached to any party for the failure to reach an agreement
- the Environment Commissioner involved in a mediation process that did not completely resolve the issues at stake will generally disqualify themselves from any hearing.
