In relation to resource consent applications and policy statements or plans, parties must agree to mediation. For disputes on a policy statement or plan the mediation must specifically be conducted by an independent mediator. For resource consents, mediation must be conducted by a person whom the authority delegates the power to do so, or a person whom the authority appoints to mediate if the Council has lodged the application.
In both cases, the person who conducts the mediation must report the outcome to the consent authority.
Mediation is one of many tools utilised by the Environment Court if one or more of the parties disagree with the Council's decision after a hearing. If an appeal or reference is made to the Environment Court, one of the parties will request mediation, or the Environment Court seeks to see if the parties would work towards resolving the matters by mediation. Parties meet with an independent mediator and work to reach an agreement.
Mediation is more formal than a pre-hearing meeting. More time is taken for the parties to agree on the process before moving onto the substance of the dispute. The parties can choose their own mediator at their own expense, or the Environment Court may appoint one of its commissioners to act as the mediator at no charge to the parties.
Changes were made to the RMA in 2017 to strengthen the role of alternative disputes resolution in the Environment Court. Section 268 was replaced and section 268A introduced to give the Court the discretion whether to require ADR and all parties must participate in the process unless the Court grants leave otherwise. Any person required to attend a judicial conference or ADR may be represented by other people, but only if at least one of those people is authorised to make decisions on their behalf about any matters reasonably expected to arise in the conference or ADR.
The Environment Court uses ADR to settle many matters without the need for a formal hearing. More information can be found about the use of ADR in Court processes in the Everyday Guide and the Environment Court Practice Note 2014.