Employment Mediation

Employment mediation is a structured conversation facilitated by a trained, neutral mediator who helps employees and employers work through their disputes. The mediator doesn't make decisions or impose solutions but instead guides the discussion to help both parties understand each other's perspectives and find common ground.

Mediation is typically the first step in resolving employment disputes in New Zealand. When someone raises a personal grievance or other employment issue, the matter is usually referred to mediation before it can proceed to the Employment Relations Authority (ERA).

The process is fundamentally different from going to court. Instead of presenting evidence to a judge who makes a binding decision, mediation involves collaborative problem-solving. Both parties retain control over the outcome and can only reach an agreement if both sides are willing to accept the proposed solution.

Mediators are experienced professionals, often with legal or human resources backgrounds, who understand employment law and workplace dynamics. They're skilled at managing difficult conversations and helping people move past emotional barriers to focus on practical solutions.

The mediation process typically begins when one party requests mediation through the Ministry of Business, Innovation and Employment (MBIE) or when a personal grievance is filed. The mediation service will contact both parties to arrange a suitable time and location for the session.

Most mediation sessions are held at neutral venues, such as MBIE offices, though they can sometimes be conducted at workplaces or other agreed locations. The session usually starts with the mediator explaining the ground rules, emphasising confidentiality, and outlining how the process will work.

Each party typically has an opportunity to present their perspective on the dispute without interruption. This allows everyone to understand the key issues and concerns from different viewpoints. The mediator may then facilitate a general discussion or separate the parties for private sessions to explore potential solutions.

Throughout the process, the mediator helps identify common interests, clarify misunderstandings, and generate options for resolution. If an agreement is reached, it's usually documented in writing and signed by both parties, making it legally binding.

Confidentiality is one of the most important aspects of employment mediation. Everything discussed during mediation is strictly confidential and cannot be disclosed or used as evidence in subsequent legal proceedings. This protection encourages open and honest discussion without fear that statements will be used against you later.

The confidentiality rule applies to all participants, including the parties, their representatives, support people, and the mediator. Even if mediation fails to resolve the dispute and the matter proceeds to the ERA, nothing said during mediation can be mentioned or used as evidence in the formal hearing.

There are very limited exceptions to confidentiality. Information may be disclosed if both parties specifically agree in writing to waive confidentiality for certain matters, or if disclosure is required to prevent serious harm to someone's safety. These exceptions are rare and would require explicit consent or exceptional circumstances.

The confidentiality protection extends to any documents prepared specifically for mediation, though documents that existed before mediation (such as employment contracts, emails, or performance reviews) remain available for use in formal proceedings if needed.

Employment mediation can result in a wide range of outcomes, depending on the nature of the dispute and what both parties are willing to accept. The most common successful outcomes include financial settlements, changes to employment terms, reinstatement to employment, or agreements about future workplace behaviour.

For unfair dismissal cases, outcomes might include compensation for lost wages, reinstatement to the job, or a combination of both. In bullying and harassment situations, agreements often focus on changes to workplace policies, training, or restructuring reporting relationships.

Wage and entitlement disputes typically result in payment of outstanding amounts, plus interest where appropriate. Personal grievances involving discrimination might lead to compensation for humiliation and loss of dignity, along with systemic changes to prevent future issues.

Not all mediations result in full resolution. Sometimes parties reach partial agreements on some issues while leaving others to be determined by the ERA. Even partial resolution can be valuable, as it narrows the scope of formal proceedings and may lead to cost savings.

The success rate for employment mediation in New Zealand is generally high, with most cases reaching some form of resolution. However, success depends heavily on both parties approaching the process with genuine willingness to find solutions.

Effective preparation is crucial for successful mediation. Start by clearly identifying your key concerns and what outcomes would be acceptable to you. Consider not just your ideal result, but also what you might be willing to accept as a reasonable compromise.

Gather all relevant documents, including employment contracts, correspondence, performance reviews, and any evidence supporting your position. While you won't present evidence formally like in court, having documentation helps you explain your situation clearly and respond to questions.

Think about the other party's perspective and what their concerns might be. Understanding their position helps you identify potential areas of compromise and develop creative solutions that address both parties' needs.

Consider whether you want legal representation or a support person present. While not required, having professional guidance can be valuable, especially for complex disputes or when significant compensation is at stake. Your lawyer can help you understand your rights, evaluate settlement offers, and ensure any agreement protects your interests.

Prepare mentally for a collaborative rather than adversarial process. Mediation works best when parties focus on problem-solving rather than blame. Be ready to listen to the other side's concerns and consider solutions you might not have initially thought of.

While you're not required to have a lawyer for mediation, legal representation can be extremely valuable, especially for complex disputes or cases involving significant potential compensation. Employment lawyers understand the mediation process and can help you navigate it more effectively.

Before mediation, a lawyer can help you understand your legal rights and the strength of your case. This knowledge is crucial for evaluating whether settlement offers are reasonable and for understanding what you might achieve if the matter proceeds to formal proceedings.

During mediation, lawyers can provide real-time advice about settlement proposals, help you understand the legal implications of different options, and ensure that any agreement properly protects your interests. They can also help you communicate your position more effectively and respond to unexpected developments.

Lawyers experienced in employment mediation understand the collaborative nature of the process and can help maintain a constructive atmosphere while still advocating for your interests. They know when to push for better terms and when compromise is in your best interest.

If you're an employer, legal representation helps ensure that any settlement agreement complies with employment law requirements and doesn't create unintended precedents or obligations. Lawyers can also advise on the broader implications of different resolution options for your business.

The mediation service itself is provided free of charge by MBIE, making it an accessible first step for resolving employment disputes. However, you may incur costs for legal representation, time off work to attend mediation, and travel expenses if the session is held away from your usual location.

Legal costs for mediation are typically much lower than for formal ERA proceedings, as the process is usually completed in a single day rather than requiring extensive preparation and multiple hearings. Many lawyers offer fixed-fee arrangements for mediation representation, providing cost certainty.

Consider the practical implications of different settlement options. For example, if you're seeking reinstatement, think about whether you genuinely want to return to the workplace and whether the employment relationship can be effectively restored. Sometimes a financial settlement and clean break is more practical.

Time is also a factor. Mediation typically resolves disputes much faster than formal proceedings, which can take many months to complete. If you need quick resolution due to financial pressures or other circumstances, this may influence your approach to settlement negotiations.

Think about the emotional and reputational aspects as well. Mediation allows for more creative solutions that can address non-financial concerns, such as references, confidentiality agreements, or public statements about the resolution.

If mediation doesn't result in an agreement, the mediator will issue a certificate confirming that mediation was unsuccessful. This certificate is required before the matter can proceed to the Employment Relations Authority for formal determination.

Failed mediation doesn't mean your case is weak or that you won't succeed in formal proceedings. Sometimes parties are simply too far apart in their positions, or one side may not be negotiating in good faith. The formal process provides different tools and remedies that may be more appropriate for your situation.

The confidentiality protections mean that nothing discussed during mediation can be used against you in ERA proceedings. You can present your case fresh, without concern that settlement discussions will be seen as admissions or weakness.

However, consider carefully whether proceeding to formal proceedings is in your best interest. ERA cases take longer, cost more, and create additional stress and uncertainty. The Authority also has limited remedies compared to the creative solutions possible in mediation.

Sometimes it's worth trying mediation again later, particularly if circumstances change or if initial positions soften over time. The door to mediation remains open even after formal proceedings have begun, and many cases settle through renewed mediation efforts.