What happens when mediation ends?

A consent order is an Environment Court order that endorses the agreement the parties reached during mediation. The court has the power and responsibility to ensure a consent order is consistent with the purpose of the RMA, any relevant policy statement or plan, and the terms of the original proceedings that were under appeal.

This is a form of ‘quality control’ that helps ensure the integrity of the mediation process. It shows that issues have not been dealt with superficially and the resolution is in accordance with the law.

When the court confirms a consent order, the proceedings are usually completed. However, sometimes an agreement might only partially settle the dispute – for example, when the issue is a complex plan change.

The parties may enter into a private contract to provide for any aspects of agreement that may not be enforceable under the RMA. Depending on how they are drawn up, they may be legally enforceable as a contract, and any disagreements, or breaches, can be referred to a civil court (eg, the District Court).

If there is no agreement after mediation, or the parties ‘agree to disagree’, they may proceed to litigation (legal action) which includes a hearing process.

This does not mean that mediation has failed. The parties may have gained a better understanding of the issues, or a new perspective on a dispute, or a positive insight into the attitudes of others. Mediation can also help the parties narrow down the dispute.

All these outcomes can help reduce court time, and hence costs, if the parties do proceed to the Environment Court.

Environment Court hearings

Court hearings can be seen as a powerful backstop to mediation, because:

• all the issues originating from the dispute will be reviewed
• the formal court setting can motivate people to reach an outcome
• the Environment Judge remains completely independent from any matters discussed in mediation. The Judge will not be aware of any details of the mediation and no party will be blamed for failing to reach an agreement
• an Environment Commissioner involved in mediation that did not completely resolve the issues will generally disqualify themselves from any hearing.