NZDRC executive director on the small wins in unresolved cases

Catherine Green wears many hats in the ADR Centre: she is a mediator, arbitrator and adjudicator, as well as the executive director at New Zealand Dispute Resolution Centre (NZDRC) and its many subsidiaries.

In all her experience, Green’s favourite part about her work is the opportunity to influence her clients to become better, more knowledgeable versions of themselves after a dispute. Realistically, not every case is won, but Green is a firm believer that there is always something positive that can come out of the process, like making them clients feel “supported and heard” or trying to “explain where they went wrong so they can take that on board for the future.”

In this interview, Green talks about the benefits of contractual adjudication, juggling her career with completing an MBA and how the pandemic should push the profession move forward from – not revert back to – old practices.

What made you choose a career in law, and what's your favourite part of the job?

I have to confess – I fell into my career somewhat by chance. A conjoint BA/LLB seemed like a good option when I didn’t really know what I wanted to do. The path of a summer clerkship, graduate job, and then overseas experience as a commercial litigator in London and Cayman Islands followed. I certainly can’t complain about how my career has unfolded. After all, some of the best experiences are those we do not plan for.

My role now is as a mediator, arbitrator, and adjudicator. I am also a director of the ADR Centre. My favourite part of my job is when I can see that we have really helped someone. In particular, when I can see that they have not only resolved the dispute at hand but have been able to learn something along the way. In my mediation work, this could simply be an opportunity to help someone learn how to see a situation through a different lens or to challenge deep-seated beliefs. In my determinative work, even where a party is unsuccessful, there is an opportunity to try to explain where they went wrong so they can take that on board for the future. 

What is going on at the organisation? Are there any new programs and initiatives that you’re particularly interested in?

We have just launched a Contractual Adjudication process through the New Zealand Dispute Resolution Centre (NZDRC) and the New Zealand International Arbitration Centre (NZIAC). With current court delays (statistics obtained for 2021 confirm 883 days from filing to disposition in the District Court and 650 days in the High court), we see that contractual adjudication can provide parties with a proportionate and effective alternative option to litigation. This is certainly meant as no criticism of the courts. However, if we can move more disputes out of the courts at an earlier time by utilising credible and effective alternative dispute resolution options, we can enable better access to justice across the board.  

Contractual Adjudication offers a fast-track dispute resolution process with the primary purpose of improving cashflow, whilst providing quick and relatively inexpensive access to justice, alleviating pressure on the Courts. It is a private, proportionate, effective, and efficient alternative dispute resolution process, based on written submissions and documentary evidence. There is no hearing. Although quick, parties can be assured that there is a backstop in that any determination is binding in the interim (and enforceable as a debt due). 

Contractual Adjudication has been modelled on the successful statutory adjudication process under the Construction Contracts Act 2002 (NZ). The use of adjudication in this sector has been commended globally, most notably in Lonsdale v Bresco [2020] UKSC 25, where Lord Briggs applauded the use of adjudication as a mainstream dispute resolution process, noting its speed and cost-efficiency.

Building on our experience delivering that statutory scheme in New Zealand over the last 20 years through the Building Disputes Tribunal, we have designed our Contractual Adjudication process to deliver an effective and efficient model for wider application across a broad range of disputes in other sectors. In our experience, we have also seen that most parties do not take the dispute further (to litigation or arbitration, for instance) but abide by the determination of the adjudicator. This perhaps reflects that commercial parties are not in the business of dispute resolution or litigation and are content to move forward with their primary business after obtaining an independent decision on the merits of their dispute. This experience was also reflected in the UK context by Lord Briggs in Lonsdale.

What tech-related initiatives adopted by the organisation, if any, are you most excited about?

We have been developing bespoke case management platforms to underpin the delivery of our services from mediations to arbitrations and everything in between. We originally went to the market to see if we could find software that would meet the specific needs of both practitioners and participants in private dispute resolution cases (including their counsel) and found that the available options were somewhat lacking. They could provide the basics (file-sharing and video conferencing) but were limited in the functionality we wanted to see that would allow us to deliver best-in-class processes and an end-to-end business solution across the diverse range of dispute resolution services we offer. 

Having completed this exercise, we decided instead to develop our own case management platform. We administer between 4,000 and 5,000 cases a year which cover a wide range of sectors and the full spectrum of ADR processes, from facilitative to determinative. Having that direct and extensive experience, we were well positioned to understand the varied needs of the ADR sector and design and build a platform that can really deliver for all participants. Our first version of the platform has successfully been in use for some time now and we are looking forward to launching our second platform shortly that will cover the full range of our services across all ADR processes.

It is really exciting to be a part of this innovative journey and I am really looking forward to continuing to develop new and innovative solutions to help make the process of dispute resolution more streamlined, accessible, effective, and efficient for all participants. 

What has been your proudest accomplishment in the last year or so? 

 My most significant accomplishment in the last year has to be completing an MBA with the University of Auckland Business School while maintaining my busy private practice. I also have a role in managing the ADR Centre which includes five separate businesses/registries: the New Zealand Dispute Resolution Centre (NZDRC), the New Zealand International Arbitration Centre (NZIAC), Building Disputes Tribunal, the Family Dispute Resolution Centre (FDR Centre), and the Independent Complaint and Review Authority (ICRA). This role requires quite a different skill set that I wanted to develop further.

Engaging in the MBA programme gave me a unique opportunity to not only hone my business skills, but to also engage closely with and learn from those in my cohort who came from a wide range of sectors and backgrounds. I think it is vital to always strive to learn new things and challenge existing views. This was a great opportunity to do both. 

What should the profession focus more on?

Accessibility, access to justice, and inclusion. At the end of the day, those we are tasked to help and to provide a service to, particularly when it comes to dispute resolution, come to us because they have a problem they can’t solve for themselves. We are privileged to help others resolve conflict that can be so destructive to lives, businesses and relationships if left unresolved. We need to remember that we are in a service profession and our role is to help people in a way that resonates with them and enables them to move on with their lives as quickly as possible. We must always remember to treat them with dignity and respect to try to make the process as accessible and positive as we can. 

It is not uncommon for my team to receive feedback that, although the person did not succeed in their case, they felt supported and heard and that was a positive outcome for them. This kind of feedback underscores the importance of the journey that our clients go through which speaks to accessibility, inclusion, and a right to be genuinely heard. This can be achieved through relatively small but consistent actions, and that is what I believe the profession should consistently strive for. 

What are the challenges you expect in your practice, and in the business of law in general, going forward? What challenges are particularly pressing in the country’s legal industry?

The biggest challenges as I see them are to ensure we are delivering effective, efficient services that are accessible and, of increasing importance, environmentally sustainable. On this last point, we may believe our profession leaves a small carbon footprint, but we can still make a difference by being more thoughtful and considered in our practice.

The restrictions of the pandemic forced us, as a profession, to quickly adopt new ways of working, new technologies, and to generally reconsider how we do the work we do. To best meet the challenges of the future, I believe we need to take a breath, look back analytically and critically at the way we have delivered services historically, and think creatively and with an open mind about how we might better design and deliver ADR services now and in the future. 

I know almost immediately prior to the pandemic, I raised the possibility of delivering more mediations and arbitration hearings online to aid accessibility for some parties who wanted it and to ensure a cost proportionate approach could be adopted. This suggestion was not particularly well received by many. However, during the pandemic we have all had to give it a go, and the vast majority of participants in these processes were pleasantly surprised with the effectiveness and efficacy of this approach. 

This is not to say that I advocate for all work to be online and to move entirely away from in-person events. Rather, the challenge for us now is to continue to think creatively about how we work and to ensure we don’t simply revert to former practices. We need to take forward with us our learnings and new skills to better ensure we deliver services that are accessible and responsive to the needs of the community we seek to serve, more time and cost-efficient, and more environmentally sustainable. 

What are you looking forward to the most in the coming year?

I am incredibly lucky to work with some very talented individuals and we have been busy developing some new initiatives, so watch this space. Otherwise, like many, I’m very much looking forward to getting out and reconnecting with friends and family throughout New Zealand and overseas. 

If you were given an opportunity to spend a day with anyone (living or dead), who would it be and why?

I’ve always held a fascination for ordinary people who have done extraordinary things. In this vein, I would choose someone like Rosa Parks. On one otherwise ordinary day in December 1955, she refused to obey a driver’s order to give up her seat, and in that single moment, demonstrated incredible courage and strength. That act of defiance became one of inspiration marking a key moment in the civil rights movement. I think individuals like Rosa can teach us all that we can find power to influence and make positive change in the world around us. I would like to learn more about her story outside of this point in time – what led to her action that day and how she later reflected on her life.