A specialist mediation service for technology disputes

A specialist service for technically complex commercial disputes

Technology disputes can consume management time, interrupt projects and damage relationships that remain commercially important.

I provide a structured and confidential mediation process that helps parties examine the real issues, assess their alternatives and negotiate practical outcomes.

Mediations are conducted online by default, allowing participants, counsel, experts and decision-makers to take part from different locations. In-person and hybrid mediations are also available by arrangement.

Technology disputes are rarely only about the technology

A technology dispute may appear to concern defective software, delayed implementation or a service-level failure. Underneath those issues there are often broader disagreements about:

• what was promised;
• whether requirements changed;
• who accepted particular risks;
• whether a system is fit for its intended purpose;
• whether further performance remains possible;
• what should be paid;
• who owns or may use intellectual property or data;
• and whether the commercial relationship can continue.

The evidence may include contracts, specifications, change requests, project-management records, emails, tickets, system logs, expert reports and competing accounts of how the project evolved.

Mediation provides a confidential setting in which the parties can examine that material without losing sight of the commercial decisions that need to be made.

Technology disputes I mediate

I accept appointments involving:

• software development and implementation;
• SaaS and cloud-service agreements;
• IT services and managed-service contracts;
• digital-transformation and automation projects;
• technology procurement;
• scope, specification and change-control disputes;
• delays, cost overruns and failed go-live events;
• acceptance testing and performance disputes;
• service levels, availability and support obligations;
• systems integration, APIs and platform performance;
• software licensing and usage disputes;
• intellectual-property ownership and commercialisation;
• data access, migration, retention and deletion;
• cybersecurity and information-handling issues;
• artificial-intelligence services and implementation;
• technology-enabled professional services;
• founder, shareholder and joint-venture disputes involving technology businesses.

A dispute does not need to be exclusively technical: This service may assist where technology forms an important part of a wider contractual, commercial or organisational dispute.

Why mediate a technology dispute?

Retain control of the outcome

A mediator does not impose a decision. The parties decide whether to settle and what terms they are prepared to accept.

Address commercial needs

A negotiated outcome can deal with matters that a court judgment or arbitral award may not address effectively, including revised milestones, system remediation, transition arrangements, future support, data migration, licensing and continuing performance.

Protect sensitive information

The mediation is conducted privately and subject to agreed confidentiality and without-prejudice protections.

Reduce business disruption

Mediation can be arranged without waiting for a full court or arbitration timetable. It can take place before formal proceedings, during litigation or arbitration, or while a project is still underway.

Preserve valuable relationships

Some disputes arise between parties that still need one another. Mediation allows them to consider whether the relationship can be repaired, restructured or ended in an orderly way.

Narrow the dispute

Even where a complete settlement is not reached, mediation may clarify the issues, reduce the matters requiring determination and create a more realistic basis for later negotiation.

A structured and commercially realistic process

My approach is calm, analytical and practical. I work with the parties and their advisers before the mediation to identify the issues, ensure the right people will attend and establish an efficient process for the exchange of information.

During the mediation I may:

• bring the parties together for joint discussion;
• meet privately with each party and its advisers;
• clarify legal, technical and commercial positions;
• identify misunderstandings and information gaps;
• test assumptions and assess litigation or arbitration risk;
• explore the interests underlying stated positions;
• help the parties develop and evaluate settlement options;
• maintain momentum when negotiations become difficult.

The process is flexible but not directionless. The objective is to help the parties make informed decisions and determine whether a workable agreement can be reached.

Technology understanding without losing sight of the dispute

I have practised law since 2007, with experience in civil litigation, evidential analysis, negotiation and trial advocacy.

Alongside my legal work, I have maintained a longstanding involvement in technology and complex information systems. Since 2005 I have developed Aria3D, a technology project concerned with spatial audio, non-visual information and the communication of complex data. I have consulted on the development of legal information systems for both New Zealand and multinational corporations. I have also developed and managed a number of websites, including a substantial legal information resource designed to make New Zealand court and tribunal processes easier to understand. That experience does not replace the role of a technical expert. But it does mean that I am comfortable working with technical terminology, digital systems, software projects, development histories and complex documentary material.

The mediator’s role is not to become the project engineer. It is to understand enough to help the parties identify the real disagreement, communicate clearly and make commercially informed decisions.

Online mediation by design

This is an online-first service. Preliminary conferences, private meetings, joint discussions and the mediation itself can all be conducted through secure video conferencing.

Online mediation can be particularly useful where:

• the parties are based in different cities or countries;
• corporate decision-makers need to join for only part of the process;
• experts or insurers are participating remotely;
• the dispute involves an online business or distributed project team;
• travel would add unnecessary cost or delay;
• urgent scheduling is required.

In-person or hybrid mediation may be arranged where physical attendance would materially assist the process.

Outcomes designed around the problem

Depending on the dispute, a settlement might include:

• payment, repayment or an agreed fee adjustment;
• service credits;
• completion of specified work;
• a revised project scope or timetable;
• independent testing or verification;
• remediation of identified defects;
• access to software, repositories, systems or data;
• data migration or transition assistance;
• temporary continuation of services;
• variation or termination of a licence;
• clarification of intellectual-property ownership;
• restrictions on future use or disclosure;
• return, retention or deletion of information;
• revised governance and reporting arrangements;
• mutual releases;
• confidentiality or agreed public statements;
• an orderly end to the commercial relationship.

The parties remain free to develop an outcome that responds to their actual commercial circumstances.

Mediation or arbitration?

Mediation helps parties negotiate their own outcome. Arbitration places the dispute before an independent arbitrator who makes a binding decision.

Mediation may be preferable where the parties want to retain control, preserve flexibility, protect an ongoing relationship or explore an outcome beyond the remedies available through formal determination.

Arbitration may be preferable where a binding determination is required and the parties are unable to reach agreement.

The processes may also be used sequentially. Parties can mediate first and proceed to arbitration only if some or all issues remain unresolved.

Fees and preparation

My standard fee is NZD $6,500 plus GST per mediation day.

The fee includes all ordinary pre-mediation work, including preliminary conferences, correspondence, procedural arrangements and review of mediation materials.

Extended mediation time and substantive post-mediation work are charged at NZD $600 plus GST per hour.

Travel, accommodation and external expenses such as room hire are additional where required.

Enquiries and appointments

An initial enquiry may be made by a party, lawyer, in-house counsel or other authorised representative.

The first step is usually a confidential availability and conflict check. This requires the names of the parties and their advisers, together with a short neutral description of the dispute.

Detailed confidential or privileged materials should not be provided until the conflict check has been completed.