The role of the courts
Encouraging out-of-court resolution
24.47As we noted above, while there will always be a role for the courts in helping to determine disputes, attention should also be paid to the methods of resolving disputes without the need for court intervention. Resorting to court can be expensive, time consuming and damaging to relationships. On the other hand, various methods of alternative resolution can be cheaper, quicker and less acrimonious. We consider that burial disputes are particularly well suited to efforts to resolve them outside of court because the disputing parties usually have an ongoing interest in maintaining a good relationship. Consequently, we have considered legislative and non-legislative methods of promoting and motivating out-of-court resolution of burial disputes.
24.48In considering legislative mechanisms for motivating out-of-court resolution of burial disputes, we particularly focused on mandatory alternative dispute resolution (ADR) or a “genuine steps” mechanism adopted under Australian Federal legislation in respect of civil disputes.
24.49We have concluded that mandatory ADR is not appropriate for burial disputes. The main reason is that some burial disputes will not be appropriate for ADR, perhaps because they require a rapid and simple decision from a court; they clearly involve an uncertain point of law that can only be determined by a court; or the relationships have broken down to such an extent that a mediated resolution is extremely unlikely. A compelling reason should be present before introducing mandatory mediation into a court regime.
24.50Despite rejecting mandatory ADR, we consider that a middle way is possible in which the statute sends a strong message to litigants that out-of-court resolution is preferable and motivates that behaviour with negative consequences for parties that have not attempted to resolve their disputes out of court. An example is provided by the Australian Civil Disputes Resolution Act 2011 (Cth). Under that Act, before commencing proceedings, parties in civil disputes must file a statement saying what steps they have taken to resolve their dispute. If they have not taken any steps, they must provide the reasons why. Lawyers are required by the Act to advise their clients of this requirement. The Act provides examples of genuine steps that could be taken, such as:
- notifying the other person of the issues and offering to discuss them;
- providing relevant information to the other person to enable them to understand the issues;
- considering a facilitated resolution;
- attending a facilitated resolution; or
- attempting to negotiate with the other person.
24.51While a failure to take genuine steps or file the genuine steps statement does not invalidate the proceedings, the court may take a failure into account when making decisions about case management and directions as to costs. An example was provided in a 2012 case in which neither party filed a genuine steps statement, and the lawyers conceded that no attempts had been made to settle the matter before court despite the dispute concerning just $10,706.33—half the likely legal fees of the two parties. In that case, the judge severely criticised the lack of attempts at out-of-court resolution, refused to make a costs order and referred the lawyers to the relevant Law Society, Bar Association and Legal Services Commission.
24.52We consider that this is a simple mechanism that sends a strong message about ADR and motivates the desired behaviour while avoiding the potential negative consequences of mandatory ADR. It is particularly well suited to burial disputes because it is flexible enough to accommodate the wide range of circumstances that may arise in those cases.
R126 The statute should require that, before proceedings are commenced under the burial dispute jurisdiction, the parties must file a genuine steps statement, outlining the steps they have taken, if any, to resolve the issues.
R127 The court may take account of the genuine steps statement or any failure to file a genuine steps statement when exercising any of its powers or functions under the burial disputes jurisdiction and when considering costs.
24.53Through our consultation on Issues Paper 34, we encountered a strong desire for mechanisms to enable parties to resolve burial disputes without the need for court intervention. We also found that there are a wide range of community groups already engaging in or promoting ADR for burial disputes, including the Muslim Working Together Group; the Federation of Islamic Associations of New Zealand; the New Zealand Nurses Organisation; Māori wardens; funeral directors; kaumātua; and lawyers.
24.54Police iwi liaison officers and ethnic liaison officers are often involved in their capacity as the liaison point between Police and the community. These officers rely on their cultural knowledge, strong community relationships and professional judgement to diffuse or manage a burial dispute.
24.55Support has been expressed for coroners being given power to intervene in burial disputes. It has been suggested that coroners could be given legal jurisdiction to mediate burial disputes. Although there are examples of people who have had positive experiences with particular coroners acting in their personal capacity, resolving burial disputes is outside the normal coronial role, and so we cannot make such a recommendation. While some coroners have significant experience and expertise in dealing with bereaved families, mediating disputes about funeral arrangements, burial, cremation or disposal of the remains is a very different function.
24.56We concluded from our consultation that there are a wide range of people in the community that are well placed to step in and help to resolve burial disputes before they escalate but that these people would benefit from clear information about the law, different cultural practices and other people with greater expertise to assist.
24.57Consequently, we would encourage the Ministry of Justice or Department of Internal Affairs to consider publishing this information via pamphlets and a website. That information could be made available at funeral businesses and Citizens Advice Bureaus. It could be useful in training people who may find themselves in a strong position to support the resolution of burial disputes, such as funeral directors, Police, lawyers, doctors and kaumātua.