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ReSolution | Dec 2020
Do both parties need to agree to participate?
Yes, parties who wish to access the scheme must agree to do so, whether they wish to arbitrate or mediate, even if they already have an agreement to arbitrate or mediate in the lease document. This is because they need to agree to enter into a process delivered specifically in accordance with the scheme. You can download a template agreement to mediate or arbitrate on NZDRC's website by clicking here.
What if the other party does not agree to arbitrate or mediate?
If the other party does not agree to use the subsidised scheme you may want to seek independent legal advice to see what your options may be. You may have a dispute resolution clause in your lease that gives you a contractual right to arbitrate or mediate.
Does my dispute qualify?
Parties to a dispute will be eligible to access the subsidised scheme if:
1. The dispute is a Qualifying Dispute;
2. At least one of the parties to the Qualifying Dispute meets the Eligibility Criteria; and
3. The applicants have not previously accessed mediation or arbitration services (whether with NZDRC or another provider contracted to the Ministry of Justice) in respect of the Qualifying Dispute in question.
Parties can only access fully subsidised mediation or arbitration. Accordingly, to the extent parties choose to mediate, this means they will be unable to access a subsidised arbitration service in the event of failure to settle at the mediation. However, they may still access NZDRC’s private low cost and fixed fee arbitration scheme if the other party agrees.
A dispute is a Qualifying Dispute if:
1. The dispute is about the payment of rent and outgoings where the lessee to the lease has experienced a material loss of revenue during a lockdown period because of government restrictions put in place to combat COVID-19; and
Government subsidised COVID-19 Commercial Lease Disputes Arbitration and Mediaton FAQ's
By Jesika Sabo and Maria Cole