What is mediation?
Mediation is when an independent person, known as a mediator, helps two or more parties resolve a work-related dispute in a semi-formal and confidential environment.
Mediation offers a negotiation process that can help both parties find flexible and creative solutions to workplace problems. This can prevent the breakdown of an employment relationship and offer a cost-effective alternative to the formal proceedings of an employment court.
Mediation is normally used to resolve disputes between an employer and employee, although sometimes mediation is used to settle disagreements involving only employees.
Is mediation a legal requirement?
Mediation is a voluntary process in New Zealand. However, participation in mediation is seen as an important part of acting in good faith during an employment relationship.
If you refuse to participate in mediation, the other party may choose to escalate the problem to the Employment Relations Authority (ERA). The ERA has the legal authority to demand that you attend mediation.
The mediation process
There is no set procedure that a mediation will follow, with the process differing from business to business. However, there are certain actions and activities that mediation will normally involve. These include:
Early assistance
This may be through email and telephone conversations. A mediator will see if there’s a way of resolving the dispute promptly without needing a meeting.Meeting
This is when parties meet with a mediator in a semi-formal environment, discuss the problem and explore possible solutions.Giving the mediator powers
If both parties agree, you can give the mediator the power to make a written recommendation or binding decision. Ideally, this should act as a mutually acceptable settlement.Record of settlement
If both parties agree to a dispute resolution, it will be written down in a record of settlement. This is a legally binding document. Once a record of settlement is signed by both parties and a mediator from the Employment Mediation Services, you may not take a case to the Employment Relations Authority or an employment court if it relates to the same issue.
Who should act as an independent mediator?
An independent mediator is someone who is not on the side of either party. For this reason, mediators are not normally the managers or direct colleagues of the parties involved.
Mediators are committed to a fair mediation process and helping parties to resolve the problem. They must withdraw from any case if they think they might have a conflict of interests.
What is a mediator’s role?
A mediator’s role is to:
Encourage both parties to speak openly and identify the real issues.
Identify common interests and points of agreement between the two parties.
Help people find a way through their problem that may not seem immediately apparent.
Explore settlement options and encourage both parties to negotiate.
Find creative solutions that allows both parties to put the issues behind them.
Provide an assessment of the risks if the problem is not resolved and proceeds further.
A mediator may also participate in workplace training activities, team events and staff mentoring.
What skills and knowledge should a mediator have?
In New Zealand, there are no compulsory qualifications that a mediator needs to have, meaning they often come from a variety of professional backgrounds. However, to be an effective mediator it’s vital to possess certain key skills and knowledge, including:
Extensive training in resolving workplace conflict.
An in-depth knowledge of employment law.
A detailed understanding of current workplace trends.
Excellent interpersonal and communication skills.
Employment Mediation Services
If an employer and employee are unable to resolve a workplace dispute internally, the Ministry of Business, Innovation, and Employment offer a free mediation service.
Either party can request employment mediation, but it will only go ahead if both parties are willing to participate.
If mediation does go ahead, a skilled and independent mediator will be assigned to your case. Mediators from the Employment Mediations Services must follow the Mediators’ Code of Ethics.
Struggling with a workplace dispute?
This FREE E-Guide provides assistance for business owners navigating workplace disputes, from informal mediation to cases with the ERA and Employment Court.
Representing yourself
It is common for people to represent themselves throughout a mediation process. If you feel confident to do so, you can arrange mediation and prepare to make your own case at a mediation meeting. It is advisable to ‘stick to the facts’, remain objective and not let your emotions get the better of you.
You don’t need any technical knowledge to represent yourself in a mediation meeting, but you do need to listen carefully, respond clearly, and be open-minded about the different possibilities for resolving a dispute.
Mediation representatives and advisors
If you’re uncomfortable with representing yourself, you can use a representative or advisor. This can be a friend, whanau member, community leader or a professional advisor such as an employment advocate or lawyer.
Professional advisors can be costly, but will offer a comprehensive service throughout mediation by:
Gathering documentation outlining the facts.
Referencing relevant aspects of employment law.
Deciding what you’re going to say at mediation.
Expressing your views at the meeting.
Negotiating a solution for the record of settlement.
Preparing for mediation
You can download a mediation workbook from the Employment NZ website to help you prepare for mediation.
Use it to help you organise your thoughts about what the problem is, how it happened, and what for you would be an acceptable resolution to the dispute.
It’s also useful to think about the other party’s point of view, including what they think the problem is, how they might perceive what has happened, and what they might consider to be a good solution.
Bringing a support person
Mediation is less formal than going to court. If you want, you can bring a support person with you to mediation. For example, your support person might be a union representative, employment advocate or lawyer.
Apart from each party’s support person, only the parties involved in the dispute and the mediator should be at the meeting.
Support people are there to do just that – provide emotional support to the party throughout mediation. They should not be actively involved in discussions during the meeting.
Dispute resolution
If an agreement is reached, the mediator records this and you and both parties sign it, at which point the dispute resolution within the agreement becomes legally binding. Both parties should get a copy of the signed agreement to keep.
If the other party does not keep to the decision imposed in the agreement, you can go to the ERA or an employment court for enforcement.
What happens if an agreement cannot be reached?
If both parties cannot agree on a dispute resolution, the mediator will discuss what the next steps might be:
You might all agree to an adjournment (setting up another meeting at a later date).
You could agree to give the mediator the power to make a recommendation for dispute resolution. If both parties agree to the recommendation, it will be legally binding.
Claims escalated from an unresolved mediation will likely go to the ERA, possibly resulting in an Employment Court hearing. In rare cases, mediation disputes can also be settled in a Human Rights Review Tribunal.
More information about what happens if parties in mediation reach an agreement (or do not), is available on the Employment New Zealand website.
Confidentiality
It’s important to understand that all information that goes into mediation is confidential, including any documents referred to in meetings and the record of settlement.
This means information must not be shared with anyone outside of the mediation process. Because of this, what happens in mediation cannot be used as evidence with the ERA or in the Employment Court. However, in many escalated cases the parties will agree to waive the confidentiality.
For free advice on dispute resolution in your workplace, call Employsure day or night, seven days a week on 0800 568 012.
