Where the case is won but lost
All PostsMy first blog post for 2021 discusses a case where my goal of tailored dispute resolution becomes clearer because of the way in which this case has obviously been a financial disaster for the parties. I have quoted the opening paragraph from President Kósfrom thee Court of Appeal.
Preston v Preston [2020] NZCA 679
REASONS OF THE COURT (Given by Kós P) [1] This claim, concerning modest relationship property, has spawned three sets of High Court proceedings. The judgment below, which is impeccable save in one respect, is 235 paragraphs in length.1 Delivered promptly by the Judge, it nonetheless came more than four years after separation. In it, the sole relief granted was an equalising payment of $15,903 — to be paid by Mrs Preston. As counsel observed at trial, “the matter has eaten its head off”.2 Having had most of her claims dismissed, Mrs Preston was also required to pay costs and disbursements of $137,233. Result: misery. Commendably, senior counsel for Mrs Preston, who did not appear below, has agreed to take her appeal for a much-reduced fee. That apart, it may be said this case is everything relationship property litigation should not be.
It is obvious that taking this case through the family court, High Court and Court of Appeal has not really resolved the issues between the parties. AMINZ has over the last 2 years promoted the concept of private arbitration for relationship property disputes, and other organisations such as Fairway Resolution offer mediation for relationship property. Both of these would have once been called alternative dispute resolution, although the preferred term now is appropriate dispute resolution. By the time the case came to the Court of Appeal, it was not possible to analyse the reason why this dispute stretched over this time and was incapable of resolution. Sometimes the parties are obdurate and unwilling to concede anything, and this will inevitably lead to the dire position that these parties found themselves in. of course, I don't know if that was the position nor do I know what sort of advice the parties had about appropriate dispute resolution.
The real problem is that by filing a claim in court you lose the autonomy of decision-making which a collaborative law or mediation approach can support. Any lawyer has a duty to explain to their clients that there are options for resolving disputes in the hierarchy from collaborative through to directive methods in the courts. In the end the clients need to have a clear understanding of those options, and the costs of the options. This is more than just the money which needs to be spent but also the stress and anxiety which must accompany any court proceeding. The lawyer must ensure that their clients know that lengthy court cases take a terrible toll on families and individuals and sever family ties permanently.
In a world with greatly polarised political views, learning to use a collaborative and restorative approach to disputes must be an important goal for anyone involved in dispute resolution. These techniques are not new. Mediation as a formal discipline has a firm place in legal practice, and supported by government policy. I hope that in 2021 we can move from the political divides which have split friends and families, to models where there is active listening, restoration of relationships, repairing harm and enabling better communication.
My first blog post for 2021 discusses a case where my goal of tailored dispute resolution becomes clearer because of the way in which this case has obviously been a financial disaster for the parties. I have quoted the opening paragraph from President Kósfrom thee Court of Appeal.
Preston v Preston [2020] NZCA 679
REASONS OF THE COURT (Given by Kós P) [1] This claim, concerning modest relationship property, has spawned three sets of High Court proceedings. The judgment below, which is impeccable save in one respect, is 235 paragraphs in length.1 Delivered promptly by the Judge, it nonetheless came more than four years after separation. In it, the sole relief granted was an equalising payment of $15,903 — to be paid by Mrs Preston. As counsel observed at trial, “the matter has eaten its head off”.2 Having had most of her claims dismissed, Mrs Preston was also required to pay costs and disbursements of $137,233. Result: misery. Commendably, senior counsel for Mrs Preston, who did not appear below, has agreed to take her appeal for a much-reduced fee. That apart, it may be said this case is everything relationship property litigation should not be.
It is obvious that taking this case through the family court, High Court and Court of Appeal has not really resolved the issues between the parties. AMINZ has over the last 2 years promoted the concept of private arbitration for relationship property disputes, and other organisations such as Fairway Resolution offer mediation for relationship property. Both of these would have once been called alternative dispute resolution, although the preferred term now is appropriate dispute resolution. By the time the case came to the Court of Appeal, it was not possible to analyse the reason why this dispute stretched over this time and was incapable of resolution. Sometimes the parties are obdurate and unwilling to concede anything, and this will inevitably lead to the dire position that these parties found themselves in. of course, I don't know if that was the position nor do I know what sort of advice the parties had about appropriate dispute resolution.
The real problem is that by filing a claim in court you lose the autonomy of decision-making which a collaborative law or mediation approach can support. Any lawyer has a duty to explain to their clients that there are options for resolving disputes in the hierarchy from collaborative through to directive methods in the courts. In the end the clients need to have a clear understanding of those options, and the costs of the options. This is more than just the money which needs to be spent but also the stress and anxiety which must accompany any court proceeding. The lawyer must ensure that their clients know that lengthy court cases take a terrible toll on families and individuals and sever family ties permanently.
In a world with greatly polarised political views, learning to use a collaborative and restorative approach to disputes must be an important goal for anyone involved in dispute resolution. These techniques are not new. Mediation as a formal discipline has a firm place in legal practice, and supported by government policy. I hope that in 2021 we can move from the political divides which have split friends and families, to models where there is active listening, restoration of relationships, repairing harm and enabling better communication.