Mediation

John Walton named in LawFuel Top 10 Mediators and Who’s Who Legal

LawFuel has released its list of the Top 10 Mediators for 2016.

Great to be on the list (with such esteemed company – 5 from Bankside Chambers).  Mediation is such an important tool for dispute resolution and for dispute avoidance in long term commercial contracts  where productive working relationships are important.

As I write this, the 2016 Edition of Who’s Who Legal Construction has landed on my desk, and I am also named as one of the world’s leading construction law practitioners. Quite a day!

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John Walton inducted as a Fellow of the International Academy of Mediators

It gives me great pleasure to announce that at the joint AMINZ/IAM conference, I was inducted into the International Academy of Mediators as a Fellow.  Particular thanks go to Tracy Allen and Tony Willis for supporting my membership.

The International Academy of Mediators is an invitation only which promotes mediation as a separate discipline and profession.  It is truly an honour to join such prestigious company in the mediation field.

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Judge orders mediation over wastewater plant dispute

After years of odour and insect problems with the Whanganui District Council’s wastewater treatment plant at Airport Road, the District Council has finally taken the step to sue the facility’s designers MWH Global.  The estimated cost of replacing the plant is reported to be $38 million, which is a significant burden for the people of Whanganui, and a potentially significant liability for MWH Global.

The relationships and responsibilities of contractors and consultants in infrastructure development can be complex, and liability for design and performance failures hard to pin; hence the truism that it is never a good idea to sue your consultants.  In a triumph of pragmatism over the thorny issues of liability in negligence, Justice Denis Clifford has ordered the parties to mediation.

If ever there was a case of a sensible suggestion, this must surely be it.  We can only hope for the sake of the people of Whanganui that both parties recognise the opportunity for what it is, and reach a realistic agreement to resolve the issue.

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International Commercial Arbitration in the Pacific Rim

While we can take some pride that New Zealand is:

  • rated as the least corrupt country in the World, alongside Denmark, and
  • a Model Law country with an impeccable Arbitration Act and supportive judiciary and legislature,

we are perceived as being a long way from the rest of the World.

It it is fair to say that there is a general lack of awareness of the opportunities which international arbitration provides.  That is something which needs to change, as once the Trans Pacific Partnership Agreement comes into effect, its participants will represent 40% of Global GDP and one third of World Trade.  New Zealand’s recent adoption of the WTO’s Agreement on Government Procurement (GPA) establishes a level playing field for New Zealand companies to compete on the same terms as local firms for government procurement contracts in seven Pacific Rim countries (including USA) and the European Union; more critically, the GPA includes the WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes, which will ultimately open the way for arbitration.  It also has to be recognised that the People’s Republic of China is very keen to establish its own international relations with its trading partners, without the necessity for the approval of the US Congress – Australia and New Zealand were early to recognise PRC’s right to take its place at the United Nations, in December 1972 (eight years before the USA), which is not overlooked by the PRC.

International commercial arbitration is a growing with trade in the Pacific Rim, and it is time for New Zealand to step up to the mark in relation to international dispute resolution.  We have a great reputation for independence and fairness – but, we have been notable by our absence in this sphere to date.

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Enforcing mediated commercial agreements

In most cases, if commercial parties manage to settle disputes in mediation, it is a simple case of signing an agreement which covers all disputes issues and reflects the agreement accurately; the parties then comply with it.

That sounds like a reasonable and simple proposition, but it raises a considerable number of issues; for example in the Specialized Bicycles case, when one party argues that there was an oral agreement made during the mediation, for which evidence from the mediation room is required; or when the parties are from different States, in which case a party may be endeavouring to enforce an mediated agreement in another jurisdiction; or in relation to family matters where the Family Court in New Zealand reserves a reasonably high level of oversight when it comes to enforcement.

On Monday, 7 July 2014, UNCITRAL’s Working Group II began consideration of a proposal for a multilateral convention on the enforceability of international commercial settlement agreements achieved through mediation.

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John Walton named by LawFuel as one of NZ’s Top Commercial Mediators

The practice of commercial mediation can be an elusive discipline.  To be named in such a distinguished group is a rare privilege indeed.

Online legal periodical LawFuel has released a list of New Zealand’s top commercial mediators in its online edition – it is gratifying to be included in a list of people for whom I hold the deepest respect.

Mediation is a vastly misunderstood field, with so much to offer to parties in disagreement.    It is ultimately the goal for people in commerce to achieve profitable outcomes; if they can’t, they need to disentangle themselves from those endeavours with the least possible financial pain.  Mediation fulfils that need.  There is a place for the Court to impose its judgment, as there is for parties to agree to appoint an arbitrator or adjudicator to provide an answer to the dispute (with the support of the Court); mediation is the only purely consensual process where the parties are assisted to resolve their disputes, using the skills of an appropriately qualified mediator, of course.

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John Walton named in the NBR as an International Arbitrator to Watch

It was gratifying to be named at number 5 in the list of 11 of the country’s up and coming arbitrators in the latest NBR Online.  

My entry read as follows:

One of the most experienced construction adjudicators and arbitrators, John Walton is an AMINZ Council member and Fellow of the Chartered Institute of Arbitrators in London.  He brings a wealth of knowledge in the construction sector, having advised on disputes in major projects over the last 25 years, including the Hong Kong Airport Project, Contact Energy’s Otahuhu Combined Cycle power station, the Waikato River Water Treatment Plant and the Mangere Wastewater Treatment Plant, the Ultra Fast Broadband project and the North Island Main Electricity Grid Upgrade.  He is well placed to enter into the international commercial arbitration scene.

The list is reproduced in Law Fuel online.

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International Academy of Mediators Conference Paris

Privileged to attend the International Academy of Mediators conference in Paris this week. Beyond the pleasure of being back in Paris, the conference is fascinating.

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Managing Disputes in Major Projects

It is easy to forget that the parties to disputes – those who actually have a vested interest in the outcome, and who pay our bills – are very rarely in the business of dispute resolution.  They have businesses they wish to run, and disputes are generally costly distractions to those businesses.  I would venture to add that the cost, uncertainty and delay in traditional litigation (and sometimes arbitration, for that matter) is unwelcome in a way that commercial advice geared to project delivery is not.

This paper was presented to the Arbitrators’ & Mediators’ Institute of New Zealand annual conference in Auckland on 26 July 2013.

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