What does the RMA say about mediation?
The RMA provides for conflicts to be addressed informally by way of mediation so unnecessary litigation can be reduced or avoided.
At any time after proceedings are lodged, the Court may ask one or more of its Environment Commissioners to conduct the mediation to resolve the dispute. The Environment Court can do this at the request of the parties or when it thinks mediation would be a good idea but only with the agreement of the parties. The Court cannot force parties to enter into mediation, as mediation is a voluntary process. This is a free service that the Environment Court provides.
You can also agree to hire a private mediator, rather than using an Environment Court Commissioner. If you want a private mediator you should tell the Court as soon as possible. You need to pay a private mediator's fees and expenses, which can be shared between the parties.
The RMA allows Court-provided mediators to review any agreements reached by the parties but in practice, Environment Court Commissioners don't act as decision-makers at a later stage. An Environment Judge who didn't hear and can't be influenced by the private discussions that took place in mediation properly checks any agreement.
All parties to the proceedings before the Environment Court are entitled and encouraged to join the mediation process. This includes all appellants and respondents, the original applicants for resource consent, and submitters to a resource consent application or a proposed plan or policy statement.
If you are a submitter, you need to have notified the Court in accordance with section 274 of the RMA.
In addition, any person or group representing some relevant aspect of the public interest can join the mediation process. You also need to have notified the Court in accordance with section 274 of the RMA. Mediation is a voluntary process and can only proceed with the agreement and participation of all parties to that proceeding.
Any agreements reached in mediation are normally written up by the parties as a draft consent order. Consent orders spell out the terms of your agreement that are enforceable under the RMA. All draft consent orders must be reviewed and approved by the Court, which will make clear that the order cannot be changed by anyone. You don't need to have your mediation agreement approved if you have withdrawn your appeal.
If you don't reach an agreement, then your dispute may go to Court for a hearing. If you choose not to go into mediation the Court will not hold this against you in deciding the case or in considering whether to impose costs on any of the parties. You shouldn't seek to recover any costs incurred as a result of mediation from any other party, as a mutual and genuine attempt to try and settle issues has been made.
