Mediation can help parties identify common ground and define, narrow and resolve issues. The RMA provides for mediation for applicants and persons who have made submissions to a resource consent application (s99A(1)).
A council may refer the matter to mediation either at the request of an applicant or submitter or at the council's initiative, but only with the consent of all the parties. Parties cannot be made to participate in mediation and this is only appropriate where there is a willingness to do so.
The mediation must be conducted by a person who has delegated authority from the council to mediate, or by an appointed mediator if it was the council that made the application for consent (s99A(3)). The person conducting the mediation must report the outcome to the council (s99A(4)).
The RMA is silent on whether a hearings panel member can be involved in the mediation process. Engaging in preliminary discussions could undermine a hearings panel member's ability to determine the case solely based on the evidence presented as part of the hearing process. Therefore councils tend to appoint an independent person to chair pre- hearing or mediation meetings.
Mediation can have the benefits of reducing the hearing time and/or negate the need for a hearing and lessen the chance of subsequent appeals. But mediation can also lead to delays in the process. Councils should provide advice to parties entering into mediation about its purpose, limitations, and how any outcomes will be used in the decision-making process. It needs to be made clear to parties entering mediation that there is little point in mediation if they are not prepared to do so with an open mind, and are unwilling to modify their position in any way.
