For the first time, a New Zealand Court has ordered an unwilling party to attend mediation. Lady Deborah Chambers KC and Simon Barber recently appeared for the husband in Wright v Pitfield  NZHC 385.
The wife had filed proceedings to remove her former husband as a trustee of their family trust. The husband counterclaimed seeking the removal of the wife as trustee – the trust was deadlocked. The husband wanted to attend mediation to resolve the dispute but the wife did not.
The husband applied for orders under section 145 of the Trusts Act 2019 submitting the matter to a mediation with Hon Rhys Harrison QC and requiring the wife to participate in that mediation.
High Court Justice Geoffrey Venning granted those orders, finding that it was “the type of case Parliament had in mind when providing jurisdiction for the Court to require parties to attend mediation.”
Justice Venning noted that requiring the wife to attend mediation would not deny her access to the Court yet could avoid the costs of a hearing and could resolve all issues between the parties, not just the removal of trustees.
In particular, he emphasised the considerable changes in the Court’s approach to mediation over the past 20 years, both in New Zealand and internationally. He commented that Beadle v M & L A Moore Ltd “must be seen as a case from its time.”
Section 145 of the Trusts Act 2019 is a clear signal from Parliament that Courts can, and should, require unwilling parties to participate in alternative dispute resolution in the trust context.
Following Wright v Pitfield, section 145 is likely to become an effective mechanism for submitting family trust disputes (particularly those involving former spouses or partners) to mediation when one party is reluctant or unwilling to attend.
In this case, the husband’s application was vindicated when the parties attended a successful mediation with Hon Rhys Harrison QC resolving all trust and relationship property issues, therefore helping to avoid years of further litigation.
A copy of Wright v Pitfield can be found under Resources.