MEDIATION.
What is Mediation?
Mediation is where an independent person called a mediator helps resolve a workplace grievance or employment relationship problem in a semi-formal and confidential environment.
This process typically involves:
The employee or worker.
The worker's representative.
A mediator.
The employer.
The employer's representative.
A mediator will help you to identify the main issues and find potential solutions.
The aim is for you and your employer to come to an agreement to help settle the matter. Most of the time that agreement comes with some form of compensation.
You cannot be forced into a decision or agreement in a mediation process.
The most common form of mediation between employees and employers is mediation conducted by the Employment Mediation Services within the Ministry of Business, Innovation and Employment (MBIE). Whilst this = is the typical location for mediation and the service is avaliable to any employee or employer with an employment relationship problem, it is not the only one.
Private mediation is also available.
Mediation without representation is a fools errand. There are usually several factors to a good mediation including the possibility of early resolution and your best chance to achieve a good outcome is representation.
Mediation is voluntary.
However, participation in mediation can be seen as part of the good-faith duties of an employment relationship. If you choose not to take part, the other party might be able to take their complaint to the Employment Relations Authority (ERA) which can require you to attend mediation.
Each mediation is different and has its own format. It can involve different types of activities, such as:
Early assistance
This may be through email and telephone conversations. A mediator will see if there’s a way of sorting out the problem without needing a mediation meeting.
A mediation meeting
This is when parties meet with a mediator in a semi-formal environment.
A record of settlement
If the parties agree to a solution this will be written down in a record of settlement. This is legally binding and the parties cannot come back to it, for example, once a record of settlement is signed by the parties and a mediator from the Employment Mediation Services, you may not take the other person to the ERA if it relates to the same issue.
Giving the mediator powers
If both parties agree, you can give the mediator the power to either make a written recommendation or binding decision.
You should have representation throughout the mediation process. Representation improves your chances of a desirable outcome.
The Mediators are Impartial.
Mediators are not on the side of either party. They are independent people committed to helping parties to resolve the problem. They must withdraw from any case if they think they might have a conflict of interest.
Mediators from the Employment Mediations Services are obliged to follow the Mediators’ Code of Ethics [PDF 889KB]. If you believe that your Employment Mediation Services mediator has acted unfairly and would like to make a complaint, contact us.
Mediators can come from a variety of different backgrounds and have:
extensive training in resolving disputes
an in depth understanding of employment law
a clear picture of current trends in workplaces.
A mediator’s role is to:
encourage parties to identify the real issues
help the parties explain those issues to each other
identify points of agreement between the two parties
help people find a way through their problem that may not seem immediately apparent
help parties to find a resolution 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 participate in workplace discussion and education activities.
Mediation is principled and voluntary.
The underlying principles of mediation are that it is voluntary, confidential, empowers parties to make their own decisions and is conducted by an impartial person.
Based on these principles, the mediator’s primary role is to provide a safe environment for parties to address their issues, understand each other’s perspectives and look at ways to reach a resolution which meets the needs and interests of both parties.
If the mediator feels the mediation process is being undermined in any way, or the safety of any of the participants is at risk, the mediator can bring the mediation to a close.
Find out how you achieve respectful mediation by reading the terms of engagement.
Terms of engagement for mediation [PDF 298KB]
Confidentiality.
All documents and any terms of settlement reached in mediation are confidential.
All information from mediation is confidential. This means it may not be shared with anyone outside of the mediation process. Because of this, what happens in mediation cannot be used as evidence in the Employment Relations Authority or Employment Court.
The parties can agree to waive the confidentiality. Mediation carried out by Employment Mediation Services in the course of collective bargaining may not be confidential.
Information that is shared during mediation but was created outside the mediation process is not confidential.
Exceptions.
Requirement to report a dismissal or resignation to a professional body overrides the full and final nature of a record of settlement during mediation.
In these cases, the information disclosed about the mediation does not fall within the statutory definition of confidentiality in the Employment Relations Act. For teachers, nurses and similar professionals there is a requirement that the employer notifies the appropriate professional body following the resignation of an employee or their dismissal in some circumstances. The Education Act, for instance, makes such reports mandatory for teachers where misconduct or competence is being investigated at the time.
It is probably wise to address the need for notifications when negotiating a mediation settlement, rather than to surprise the former employee and risk a challenge to the settlement.
A quick guide to employment mediation.
An overview of the mediation process and what to expect.
Knowing the the relevent case law and how to negotiate is very important if mediation it to be successful.
There has been some neat case law made in the last few years that should provide workers and employer with confidence about mediation.
It is a vote of confidence that the Employment Court describes the mediation service in Culturesafe New Zealand Limited v Turuki Healthcare Services Charitable Trust as
One of the cornerstones of employment relationship problems in New Zealand.
The Employment Court provides:
that Mediation is one of the cornerstones of employment relationship problem resolution in New Zealand. Mediation generally is provided by mediators engaged by MBIE. It operates on the basis that the people present at a mediation respect that it is conducted on a without prejudice and confidential basis.
and this is clear as a bell for any employer or employee to ring.
It is important to remember that the direction to mediation by the Employment Relations Authority is a very common and procedural action taken by the authority. This is captured best in the case of Ceres New Zealand v DJK. Chief Employment Judge Christina Inglis provided:
The Court is required to consider mediation throughout the life cycle of proceedings. Given the particular circumstances, I have decided that the parties ought to be directed to mediation. That seems to me to present a useful opportunity to look at tying up any loose ends in a supported setting and with the assistance of a specialist employment law mediator.
It is quite common on a thorny issue for parties to a employment relations dispute to got to mediation more than once. Particularly if the matter involves bargaining for an agreement.
CONFIDENTIAL
Because mediation is confidential the outcomes of mediation are not generally considered in any employment matter that advances to the Employment Relations Authority.
This reason for this is exemplified in Rose v Order of St John when Chief Judge G L Colgan provides:
All communications in mediation "for the purposes of mediation" attract the statutory confidentiality except possibly where public policy dictates otherwise.
Part of any mediation settlement is that parties will likely have to make concessions. The amazing thing about mediation is that if these in mediation concessions do not lead to agreement in mediation them parties can move on to the Employment Relations Authority with the intent to seek different or increased remedies for an employment relationship problem without the mediation process having an effect on the matters at a later point.
Mediation is typically a free and frank process, albeit in a respectful manner, mostly. In Just Hotel Ltd v Jesidhass the Court of Appeal provides:
...encouraging the parties to a mediation to speak freely and frankly, safe in the knowledge that their words cannot be used against them in subsequent litigation if the dispute does not prove capable of resolution at mediation.
At the end of the day, mediation should be a safe place to discuss and resolve matters.
The best way to achieve a fair balance is through representation. Having a representative will save you time and enable you to focus on the points of your case. Workers and employers have made some silly moves without representation (and sometimes with) so it is important that you choose a representative who is there for you and wants to support you through the process.
In Rodkiss v Cater Holt Harvey Ltd the employee likely walked out of a mediation and stated that they were resigning. However, the Employment Court determined that this did not count as a resignation as mediation is a confidential process.
Don't risk it, use a representative in mediation.
All successful mediations end in a Record of Settlement (ROS) document pursuant to s. 149 of the Employment Relations Act 2000 and are considered a statutory instrument, not a commercial contract, and subsequently do not require consideration. Sawyer v Vice-Chancellor of Victoria University of Wellington 2017 provides:
Caroline Sawyer issued proceedings in the Employment Relations Authority seeking to establish that a record of settlement she signed with her former employer, the Vice-Chancellor of the Victoria University of Wellington, was invalid and that she had been constructively dismissed. She was unsuccessful.
In Sawyer v The Vice-Chancellor of Victoria University of Wellington [2016] NZERA Wellington 158 (Member Robinson). [2] Dr Sawyer challenged the Authority’s determination and the Court considered the lawfulness of the settlement agreement as a preliminary issue. The settlement agreement was held to be lawful and binding.
Subsequently, you should expect that the Record of Settlement that you sign will be lawful and binding, and, this is not a decision to make without experienced representation.
If mediation fails, then its off to the Employment Relations Authority.
Check out our section on the Employment Relations Authority to assist you in understanding the next step or check our their website: Home | Employment Relations Authority (era.govt.nz) for more information.
If you or someone you know is considering raising an employment relationship problem, or does not have a representative for their mediation, then any delay in seeking the right advice can hurt any chances when it comes to the mediation process itself.
Working For Workers is happy to assist in mediation and in raising matters pursuant to your employment.
Working For Workers understands that it is hard to trust anyone when is comes to having your voice heard.
Often, the experience of raising matters and attending mediation can be stressful and you often feel alone without representation.
You are not alone.
Working For Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your point across in mediation.
Please contact us today to discuss the matter and start turning things around for you.