Resolving disputes and claims
If you have a dispute that cannot be resolved by negotiations between you, your case manager and your insurer or the Earthquake Commission (EQC), or where experts disagree on the method of repair, we can assist through the GCCRS Internal Dispute Resolution Service (IDRS).
Facilitation and determination
IDRS provides homeowners with a choice of three options for resolving disputes relating to insurance claims:
- Facilitation: a voluntary and confidential process where the parties agree to meet with an independent third party and attempt to reach a binding settlement on the insurance dispute.
- Determination: a voluntary and confidential process where the parties agree to appoint an experienced and independent decision-maker to make a binding decision on the insurance dispute.
- Combined facilitation and determination: a voluntary and confidential process where the parties agree to appoint an experienced and independent third party who will first perform the role of facilitator, before making a binding decision if an agreement cannot be reached between the parties. If parties want to elect a combined facilitation and determination, this must be agreed to at the outset.
Participation in IDRS is voluntary. Both parties (you and your insurer/EQC) need to agree to take part in facilitation or determination. However once you have started a determination neither party may opt out of that process, unless both parties agree.
Facilitated agreements and determinations are both enforceable in a Court.
You can choose to participate in IDRS at any time after you’ve registered with GCCRS. Your case manager will assess whether your case can go through IDRS, taking into consideration the availability of technical information, what advice the parties have received about the areas of dispute, and what processes the case has previously been through (e.g. a prior mediation or expert facilitation). Your case manager can also discuss which of the three options is most appropriate in your circumstances and approach the Insurer/EQC to get their agreement.
Before entering the GCCRS IDRS, homeowners will need to agree to the Dispute Resolution Agreement Contract. We will require confirmation that homeowners have received legal advice on the contract before signing it. We can provide free access to independent legal advice.
Parties can represent themselves at facilitation but your case manager will advise how lawyers and other representatives can assist by presenting their view of the dispute.
The parties may elect at the outset or at any time while working with the GCCRS to pursue facilitation or determination. If parties want to elect a combined facilitation and determination, this must be agreed to at the outset. Participation in the GCCRS IDRS is voluntary except when determination is elected; neither party may opt out of that process, once commenced, unless both parties agree.
The facilitation process – what to expect
Facilitation is a voluntary and confidential settlement discussion. It provides parties with an opportunity to find an acceptable resolution to an insurance dispute.
The discussions will be chaired by a facilitator from a panel of experienced facilitators. They will be assigned to cases dependent on availability.
The facilitator will be neutral and impartial. They will not provide legal advice, make a decision, or impose an outcome on any party. The facilitator will hear and encourage each party to listen to the other party’s concerns and issues.
Facilitation allows parties to reach their own settlement.
When parties agree to facilitation they will each have the chance to speak and be listened to, to ask questions, and to state their point of view. The facilitator will:
- provide a process for parties to safely discuss their concerns
- assist parties to understand each other’s point of view
- keep the meeting focused
- help parties work out a resolution they can both agree on
- help write-up the settlement agreement as a binding record of settlement if an agreement is reached.
During the facilitation, the facilitator may speak with the parties together or individually at any time. Any communications between a party and the facilitator in private shall be kept confidential by the facilitator, unless authorisation to disclose is given.
Taking part in facilitation will not prevent a homeowner from taking part in a determination if the facilitation is not successful in settling the dispute.
The determination process – what to expect
Determination is an informal adjudicative process involving the parties (who have agreed to participate and be bound by the determination) and a decision-maker.
GCCRS has a panel of decision-makers who are mostly retired High Court judges. They will be assigned to cases dependent on availability. Decision-makers and experts will comply with the Code of Conduct in the High Court Rules.
The decision-maker will hear from the parties and make a final binding decision about the dispute, taking into account the insurance policy and relevant legal principles (including legislation, case law, and natural justice). A Determination gives parties a much greater degree of flexibility compared to litigation.
There are fundamental differences between Determination and other court or tribunal processes. These are briefly outlined below:
- the Determination process anticipates the case is ready for hearing and that all relevant evidence has been obtained.
- Hence the timeframe between application and Determination hearing is short. In the majority of cases this timeframe should be no more than 3 months.
- You will be asked to participate in a telephone conference with the appointed decision-maker shortly after appointment. At that telephone conference a timetable will be set for delivering evidence and submissions summarising the issues of the case to the decision-maker. This must be in written form. The conference will also address whether a site visit is appropriate.
- The evidence and submissions will be read by the decision-maker in advance of the hearing.
- The hearing will be limited to one day but the decision-maker will have the ability to extend the length of the hearing where appropriate; it is unlikely that a hearing would to exceed two days.
- A decision on the determination is expected within 21 days of the hearing.
- The process is confidential, as is the decision.
- Decisions are final. There is no right of appeal or review.
The following further guidelines will apply:
(a) Due to the flexible nature of the process, the decision-maker will make directions as to the process to be followed, as appropriate to the issues of the case.
(b) In appropriate cases the decision-maker may undertake a site visit if requested by a party.
(c) The decision-maker will take an inquisitorial approach and may ask for information or documents or any other material that may assist in determining the dispute. Decision-makers will question the witnesses.
(d) In special circumstances, the decision-maker may, after consultation with the parties, engage an independent expert from one of the GCCRS panels, such as a structural engineer, or quantity surveyor, to assist with technical issues arising in the determination. Any documentation prepared by an expert for the decision-maker will be provided to the parties.
(e) The decision-maker may receive and consider any evidence or material which he or she considers would assist in determining the dispute, whether or not that information would be legally admissible in a Court.
(f) The parties may make brief submissions (whether at the opening or closing of the adjudication or both), present their evidence, and have their experts present their reports.
(g) The decision-maker may allow conferral or questioning of any party or person together or separately and before or at adjudication if he or she considers it appropriate.
(h) A decision-maker will be allocated from the panel depending on availability and workload. Where a homeowner has or is likely to have more than 1 case for determination, where possible the same decision-maker will be allocated to the cases.
The parties should bring their own lawyers and must bring the relevant experts to the determination, but are able to represent themselves if they wish.
The decision-maker will provide a written decision of the dispute including brief reasons, generally within 21 days of the meeting. This decision is confidential, unless the parties otherwise agree to make the decision public.
It is not a prerequisite to have gone through facilitation before determination, although in many instances it may help. For parties to proceed directly to determination without facilitation, they will need to confer with the legal advisor to the IDRS, who will make a decision on whether it is appropriate.
Other dispute resolution options
GCCRS can assist with obtaining information about other dispute resolution options that are available to homeowners, such as the courts and alternative dispute resolution options. Separate legal advice should be obtained before deciding whether to take part in another dispute resolution option.
Insurance & Financial Services Ombudsman Scheme
The Insurance & Financial Services Ombudsman (IFSO) Scheme resolves complaints about insurance and financial services. The service is independent, impartial and free for consumers.
Since 2010, the IFSO Scheme has received 2,093 complaint enquiries and investigated 206 complaints about the Canterbury earthquakes. Complaints are resolved by conciliation, facilitation and mediation. Where an agreed outcome cannot be achieved, a decision can be made by the IFSO Scheme which is binding on insurers but not on consumers.
Canterbury Earthquakes Insurance Tribunal
The Canterbury Earthquakes Insurance Tribunal has been established to help people resolve residential insurance claims related to the Canterbury earthquakes though the judicial system.
The Tribunal includes an independent, funded mediation service provided by the Ministry of Business, Innovation and Employment, which is experienced in delivering mediation in the housing and tenancy sector.
If you do not reach a resolution through GCCRS, and your claim meets the Tribunal’s criteria, using the Tribunal will still be an option for you.
GCCRS can help with the application to the Tribunal and provide support through the other steps of the process if this is something that you want.