The arrival of Covid-19 into Aotearoa New Zealand in March 2020 brought significant disruption to the daily lives of New Zealanders and to the legal profession. As in many other countries around the globe, ‘lockdowns’ and social distancing measures necessitated radical changes to all manner of human interactions during the global health crisis, including to the operation of the courts and other dispute resolution processes.
These disruptions, however, also created a rare opportunity for the legal profession and the judiciary to rethink approaches to resolving disputes in Aotearoa New Zealand and, by necessity, to expedite their modernisation. In the authors’ view, many of the measures and practices initially implemented on a temporary basis to ensure dispute resolution could continue under the Covid-19 protection framework will likely endure beyond the pandemic to improve access to justice and the flexibility and efficiency of our dispute resolution forums.
Path to modernisation
Prior to the Covid-19 pandemic, the pace of Aotearoa New Zealand’s modernisation of court and other dispute resolution processes and procedures might have been described as ‘leisurely’. There was a discernible trend toward digitising court procedures, for example through the enactment of the Courts (Remote Participation) Act in 2010 to facilitate greater use of audio-visual links in courtrooms and the issuing of the Court of Appeal’s 2019 Practice Note encouraging and facilitating the use of electronic documents for civil cases in that court. However, most dispute resolution processes – whether court, arbitration, mediation or otherwise – were typically still conducted in person and largely on paper documents.
There was, however, an appetite to embrace greater digitisation and flexibility in dispute resolution procedures. This was seen, for example, in new initiatives such as the Complete Online Dispute Resolution service promoted for the digital resolution of disputes, and many practitioners’ moves to seek to run ‘paperless’ offices and trial processes.
Dispute resolution during the Covid-19 pandemic
The arrival of Covid-19 in New Zealand, and the measures enacted by the New Zealand government to combat its spread, necessitated an unprecedented level of reliance by the courts, counsel and parties on digital technologies to continue to progress cases and resolve disputes. For long periods in the beginning of 2020 (and for sporadic periods throughout 2020 and 2021 thereafter), New Zealand residents were required to isolate in their homes and only ‘essential services’ were permitted to continue to operate. Even for those essential services, in-person interactions were severely restricted, with various social distancing and other public health measures required to be observed.
Litigation through the courts
The courts, and counsel appearing in them, were designated an essential service; however, the initial ‘lockdowns’ in early 2020 saw all but the most pressing matters (being those affecting the liberty of the individual, their personal safety and wellbeing, or other time-critical proceedings) deferred or moved to remote participation. All filings, with limited exceptions, were required to move to email to avoid physical handling of documents (this was followed by the introduction of an online ‘file and pay’ service later that year) and the courts diversified their approach to digital participation to include not only AVL but also the use of Microsoft Teams and other platforms.
As the pandemic continued, various legislative instruments were enacted to further facilitate the use of technology and enable remote participation in court proceedings. For example, the High Court (Covid-19 Preparedness) Amendment Rules 2020 temporarily gave judges the power to direct that participation in any hearing may be by telephone or AVL; the Covid-19 Response (Further Management Measures) Legislation Act 2020 permitted judicial officers or Court Registrars to allow civil litigants to participate in proceedings by audio-only link; and affidavits, as well as other oaths and affirmations, were able to be administered by audio-only link or AVL while the Epidemic Preparedness (Covid-19) Notice 2020 remained in force.
The combination of these measures enabled court documents to be prepared, signed (or sworn) and filed electronically, counsel and witnesses to make court appearances from their homes (whether in New Zealand or not), and for civil dispute resolution through the courts to continue in large part through the disruptions of 2020 and 2021.
The existing flexibility of arbitration and deference to party autonomy (including in relation to matters of procedure) meant that arbitrators and arbitral forums were able relatively promptly and easily to adjust their approaches to cater for digital dispute resolution during the pandemic.
While it had not been uncommon to allow remote participation at arbitral hearings prior to the Covid-19 restrictions, particularly where the arbitrator, counsel and/or witnesses resided in different locations and could not easily travel, the global health crisis hastened the use of technology by arbitrators to facilitate online dispute resolution. Arbitration practitioners promoted the flexibility and adaptability of arbitration as advantages of arbitral processes over court processes during this time, further cementing the importance and prevalence of arbitration in dispute resolution in New Zealand.
Like arbitration, mediation provided an already flexible platform for resolving disputes during the pandemic. Traditionally, the prevailing view was that mediations were more effective where participants were all physically present and could develop trust and rapport ‘across the table’. This led to a number of mediations being deferred during the lockdowns until parties could convene in person (even if socially-distanced).
On the other hand, many parties determined to go ahead with their mediations virtually. Almost all mediators in New Zealand facilitated this by offering virtual mediations (with their own special sets of rules about the use of screens, other ‘off screen’ participants, entering and exiting virtual ‘rooms’ and the like) and continued to develop and adapt their approach to the virtual environment.
Dispute resolution beyond the Covid-19 pandemic
Although Aotearoa New Zealand’s Covid-19 protection framework was disestablished on 14 September 2022, we expect that many of the changes to the way dispute resolution was conducted during the pandemic will endure well beyond any public health restrictions.
Firstly, the need to rely on digital technologies has contributed to a signifi cant and continuing modernisation of day-to-day interactions with the courts. Th e ability to fi le documents and pay associated fi ling fees online, whilst perhaps a seemingly modest development, has signifi cantly increased the ease of transacting with the courts.
Secondly, the authors expect to see an ongoing openness to resolving disputes digitally. Th is is particularly likely for arbitrations and mediations (with their ability to move to ‘hybrid’ processes where some participants may be present in person and some attend remotely), but also for court processes. While the judiciary has indicated that virtual hearings will now be the exception rather than the rule, the authors expect that, given the familiarity that both the judiciary and practitioners now have with the technology and the changes to approach needed to translate court processes to the digital environment, there will be a greater willingness to consider virtual appearances as a viable option than prior to the pandemic. Encouragingly, the draft Digital Strategy for Courts and Tribunals released for consultation last month also indicates the judiciary may consider investigating, and, so far as practicable, pursuing, online dispute resolution over the next five to 10 years.
Finally, while the virtual administration of affidavits in Aotearoa New Zealand is only currently permitted for so long as the Epidemic Preparedness (Covid-19) Notice 2020 is in force (last renewed to 20 October 2022), the accepted reliability of such methods of administration during the pandemic may well see a move to remove the general requirement for ‘wet ink’ signatures on oaths and declarations. In an environment where electronic signatures are accepted for almost every other facet of commercial business in Aotearoa New Zealand, such a change to this last bastion of archaic legal practice would be welcome.
In short, it seems inevitable that the changes brought about by the pandemic and the broad acceptance of them by the judiciary and the profession have produced (and will continue to produce) real advancements to the practice of dispute resolution in Aotearoa New Zealand, even if not all the changes are maintained in precisely their pandemic form in the future.