S v N [2021] NZHC 2860

Section 145 of the Trusts Act 2019 enables the High Court to order that a dispute (as defined) be submitted to mediation (or other ‘ADR process’), provided the terms of the trust do not indicate a contrary intention and the dispute relates to an 'internal matter' (i.e. a matter to which the parties are trustee / beneficiary, or trustee / trustee).

S v N [2021] NZHC 2860 was the first case to consider the section. Wylie J considered the matters which could bear on the Court's exercise of discretion when deciding whether to direct the parties to mediation. Those matters could include cost, confidentiality, speed, the seriousness and complexity of the matter, the suitability of the proposed mediator, the wishes of the parties, the wishes of the settlor if known, finality, and enforceability. As the Judge observed, those considerations are not an exhaustive list. Wylie J considered that the particular circumstances of that case - including a clear lack of good will between the parties and a protection order preventing one of the parties from contacting the other - meant that the dispute should not be submitted to mediation.