The mediation process – what to expect
Mediation helps parties to reach their own settlement
Mediation is a voluntary and confidential settlement discussion. It provides parties with an opportunity to find an acceptable resolution to an insurance dispute resulting from the Canterbury earthquake sequence.
The discussion will be chaired by a mediator from a panel of experienced mediators. They will be assigned to cases dependent on availability.
The mediator will be neutral and impartial. They will not provide legal advice, make a decision, or impose an outcome on any party. The mediator will hear and encourage each party to listen to the other party’s concerns and issues.
If you are interested in mediation, talk to your case manager. Your case manager will be able to advise whether mediation is the best option for you.
- Glenn Jones
- Malcolm Wallace
- Mark Kelly
- Stuart Rose
- Deborah Clapshaw
- Rhys Harrison KC
- Dame Judith Potter
Before the mediation
Before entering the mediation, you will need to agree to the Dispute Resolution Agreement Contract. The NZCRS needs evidence that you have received legal advice on this contract before signing it – we can provide access to free legal advice.
The NZCRS will pay for the costs of the mediator and the costs of running the meeting. We may look to recover these costs from the insurer or Toka Tū Ake EQC. You will need to pay for your own experts’ time to attend the mediation.
The NZCRS schedules dates and times for mediation as soon as all the parties and a mediator are available. The meetings usually last around three or four hours, but some can last all day. A confirmation letter or email with the date and time of the mediation will be sent to all parties. The mediator may contact you before the mediation date to discuss options for the best process to meet your and the other party’s needs.
Who attends a NZCRS mediation?
The people who attend a mediation are those who want to resolve an insurance dispute (this usually means the policy holder, Toka Tū Ake EQC and/or the insurer) and a mediator. Lawyers, experts, and support people may also attend.
You, the other party, lawyers and experts, and the mediator do the talking. Other support people do not usually speak during a mediation unless specifically asked to.
People can represent themselves at a mediation. However, lawyers and experts can be very helpful in assisting parties to present their view of the dispute – particularly in assembling the facts, and setting out issues and the law. You will have to pay for your own experts, but we will assist you with legal advice if needed.
Preparing for the mediation
Make sure you have all the important papers with you (such as your insurance policy, engineering reports, letters, photos, and emails). Think about how to describe the problem and what you want to say. Writing it down will help you to remember everything. The NZCRS strongly recommends that you discuss your case with a lawyer prior to your facilitation – again, we can provide access to free legal advice if you want it.
Both parties will need to provide copies of any reports (like engineering reports) they wish to rely on before the mediation takes place. These reports will be provided to both parties and the mediator so that everyone is clear on what is being discussed.
During the mediation
The mediation process is much less formal than a court process. Usually, mediation occurs in a meeting where the parties and the mediator sit around a table and talk about the issues and options for resolution.
Each party will each have the chance to speak and be listened to, to ask questions, and to state their point of view. The mediator will:
- provide a process for parties to safely discuss their concerns
- assist parties to understand each other’s point of view
- keep the meeting focused
- help parties work out a resolution they can both agree on
- help write up the settlement agreement as a binding record of settlement if an agreement is reached.
During the mediation, the mediator may speak with the parties together or individually at any time. Any private communications between a party and the mediator will be kept confidential by the mediator unless the party gives authorisation for the mediator to disclose it.
To get the most out of facilitation, you should be prepared to:
- listen to the other person’s point of view and accept that this is how they see the world, even if you do not agree with what they say
- explain your point of view and why you hold it
- acknowledge anything you might have done differently or better
- bend a little to reach agreement
- be honest and open about what has happened
- have an open mind about options for resolution
- take brief notes, if you need to.
Reaching an agreement
The agreement will be recorded in a settlement agreement. Once it has been signed by the parties, the agreement becomes legally binding. If one party does not do what is required under the settlement agreement (for instance make a payment), the other party may apply to the court for enforcement of the agreement. You will be given a copy of the agreement to take away with you.
What happens if I change my mind?
A settlement agreement is final – once it is signed, you cannot go to court if you do not like what you have agreed to. Make sure you understand what you are agreeing to, and make sure it is acceptable to you.
If you do not agree then nothing is binding and you can withdraw from the process at any time before you reach an agreement, including during the mediation itself.
What happens if we cannot reach an agreement?
Where agreement is not reached after mediation, the parties may agree to proceed for a determination (a binding decision) on the issues. This is a free service offered through the NZCRS. You may also choose to file proceedings in the courts or apply to the Canterbury Earthquakes Insurance Tribunal.