How Employment Mediation Works

MBIE's mediation service is a free, voluntary process designed to help resolve employment disputes before they escalate to formal legal proceedings. The service is available to all employees and employers in New Zealand, regardless of the size of the business or the nature of the employment relationship.

Mediation is conducted by trained, impartial mediators who don't make decisions for you but help facilitate discussions between the parties. The goal is to reach a mutually acceptable resolution that both sides can live with, rather than having a decision imposed by an external authority.

The process is confidential, meaning nothing said during mediation can be used as evidence if the matter later proceeds to the Employment Relations Authority. This confidentiality encourages open and honest discussion, which often leads to creative solutions that wouldn't be available through formal legal proceedings.

Most employment disputes are suitable for mediation, including personal grievances, unfair dismissal claims, wage disputes, and workplace relationship issues. However, some matters involving serious misconduct or where urgent interim orders are needed may require immediate ERA intervention.

The mediation process begins when either party requests mediation services from MBIE. You can make this request online through the MBIE website, by phone, or by completing a written application form. The request should clearly outline the nature of the dispute and the parties involved.

For personal grievances, you must first raise the issue with your employer and allow them a reasonable opportunity to address it before requesting mediation. This is a legal requirement under the Employment Relations Act, and MBIE will check that this step has been completed before accepting your mediation request.

When making your request, provide as much relevant information as possible, including dates, key events, and what outcome you're seeking. This helps MBIE assess the case and assign an appropriate mediator. You'll also need to provide contact details for all parties involved.

MBIE will contact the other party to confirm their willingness to participate in mediation. While mediation is voluntary, most employers agree to participate as it's generally faster and less costly than formal proceedings. If the other party refuses mediation, you can proceed directly to the Employment Relations Authority.

Effective preparation is crucial for successful mediation outcomes. Start by gathering all relevant documents, including your employment agreement, correspondence with your employer, performance reviews, medical certificates, and any evidence supporting your position. Organise these materials chronologically and make copies for the mediation session.

Develop a clear understanding of your legal position and what remedies you're entitled to seek. This might include compensation for lost wages, hurt and humiliation, or reinstatement to your position. Research similar cases or consult with an employment lawyer to understand realistic settlement ranges for your situation.

Consider your negotiation strategy and identify your priorities. What's most important to you - financial compensation, an apology, changes to workplace policies, or simply moving on? Understanding your own priorities helps you evaluate settlement offers during mediation.

Prepare a clear, factual summary of events leading to the dispute. Focus on objective facts rather than emotions, and be ready to explain your position calmly and professionally. Practice explaining complex situations in simple terms, as this will help during the mediation discussion.

If you're bringing legal representation, meet with your lawyer beforehand to discuss strategy, review documents, and clarify your instructions. Even if you're representing yourself, consider getting legal advice before mediation to understand your rights and options.

Mediation sessions typically take place at MBIE offices, though arrangements can sometimes be made for alternative venues if needed. Sessions usually last 2-4 hours, though complex cases may require a full day or multiple sessions spread over several days.

The session begins with the mediator explaining the process, ground rules, and confidentiality provisions. Each party then has an opportunity to present their version of events and explain what they're seeking from the mediation. This initial phase helps everyone understand the different perspectives and identify key issues.

The mediator may then separate the parties into different rooms for private discussions. These 'caucus' sessions allow each side to speak confidentially with the mediator about their real interests, concerns, and potential settlement parameters. The mediator uses this information to identify common ground and potential solutions.

Throughout the process, the mediator facilitates communication between the parties, helping them explore options and work towards resolution. They may suggest creative solutions, help parties understand each other's positions, or reality-test proposed settlements against likely ERA outcomes.

If agreement is reached, the mediator will help draft a settlement agreement that both parties sign. This becomes a legally binding contract. If no agreement is reached, the mediator will confirm that mediation has been unsuccessful, and parties can proceed to the Employment Relations Authority if they choose.

Settlement agreements reached through mediation are legally binding contracts that both parties must honour. These agreements typically include financial compensation, but may also cover non-monetary terms such as references, confidentiality clauses, or changes to workplace policies.

Common elements of employment settlement agreements include compensation for lost wages, hurt and humiliation payments, notice pay, and sometimes ongoing benefits or career transition support. The agreement should clearly specify payment amounts, timing, and any tax implications.

Many settlements include confidentiality clauses preventing parties from discussing the dispute or settlement terms. Consider carefully whether you're comfortable with these restrictions, as they may limit your ability to warn others about workplace issues or discuss your experience publicly.

Reference clauses are particularly important if you're leaving your employment. Ensure any agreed reference accurately reflects your work performance and doesn't unfairly limit your future employment prospects. Sometimes parties agree on specific wording for references or LinkedIn recommendations.

Before signing any settlement agreement, make sure you understand all terms and their implications. If you have legal representation, your lawyer should review the agreement and explain its effects. Once signed, settlement agreements are difficult to challenge, so it's important to get them right the first time.

Not all employment disputes can be resolved through mediation. Sometimes parties have fundamentally different views of events, or their positions are too far apart to bridge. In other cases, one party may be using mediation as a delaying tactic rather than genuinely seeking resolution.

If mediation is unsuccessful, you have 90 days from when you first raised your personal grievance to file a case with the Employment Relations Authority. This deadline is strict, so don't delay if mediation fails and you want to pursue your case further.

The ERA process is more formal than mediation, involving written statements, evidence presentation, and legal arguments. The Authority makes binding decisions based on employment law and the facts presented. While this provides certainty, it's also more time-consuming, stressful, and potentially expensive than mediation.

Before proceeding to the ERA, consider whether there are other ways to resolve the dispute. Sometimes a second mediation session with a different mediator can be successful, particularly if circumstances have changed or new information has emerged.

Even if mediation doesn't result in full settlement, it often helps narrow the issues in dispute and may lead to partial agreements on some matters. This can make any subsequent ERA proceedings more focused and efficient.

MBIE mediation services are provided free of charge to all parties. There are no fees for the mediator's time, room hire, or administrative costs. This makes mediation an accessible option for resolving employment disputes regardless of your financial situation.

However, you may choose to engage legal representation, which involves legal fees. Many employment lawyers offer fixed-fee arrangements for mediation representation, making costs predictable. Some lawyers also provide unbundled services, such as document review or strategic advice, without full representation.

Consider the complexity of your case, the amount at stake, and your comfort level with the process when deciding whether to engage a lawyer. For straightforward wage disputes or minor grievances, self-representation may be adequate. For complex dismissal cases or where significant compensation is involved, legal representation often pays for itself.

If you're a union member, check whether your union provides representation or legal support for employment disputes. Many unions have experienced advocates who can represent members in mediation at no additional cost.

Legal aid is not available for employment mediation, but some community law centres provide free or low-cost employment law advice. The Citizens Advice Bureau can also provide general information about the mediation process and your rights.

Successful mediation requires the right mindset and approach. Come prepared to listen to the other party's perspective and engage constructively in problem-solving. While you should be clear about your position, avoid being rigid or confrontational, as this rarely leads to good outcomes.

Focus on your interests rather than your positions. For example, instead of demanding reinstatement, consider what you really want - job security, income, career progression, or simply fair treatment. This opens up more creative settlement options that might better meet your actual needs.

Be realistic about likely outcomes. Research similar cases, understand the legal tests that apply to your situation, and consider what you might achieve through the ERA if mediation fails. This helps you evaluate settlement offers objectively rather than emotionally.

Communicate clearly and professionally throughout the process. Avoid personal attacks, inflammatory language, or rehashing old grievances. Instead, focus on the specific issues that need resolution and potential ways forward.

Consider the other party's interests as well as your own. Employers often care about avoiding precedent, maintaining workplace relationships, or limiting disruption to their business. Understanding these concerns can help you craft settlement proposals that work for both sides.

Finally, be prepared to compromise. Mediation works best when both parties are willing to move from their initial positions to reach a mutually acceptable middle ground. Perfect outcomes are rare, but fair resolutions that both parties can live with are achievable in most cases.