Mediation for employment issues, you may have heard of it, but what is mediation in the context of employment? What can it be used for and what does the process look like?  Many people believe that mediation is only for when an employee brings a grievance against their employer, and while this is a common use for mediation, there are many other ways that mediation can be a useful tool for both employer and employee for a range of issues in the employment relationship.

What is Mediation?

Mediation is a service for employers and employees which is run through Employment New Zealand who operate under MBIE; the Ministry of Business, Innovation and Employment. It is free and confidential, and generally a quick process to engage in, with some mediations lasting only a couple of hours before being resolved, which means less stress and lost productivity for all parties involved.  Mediation is a fantastic first step in resolving employment issues without having to go to the ERA (Employment Relations Authority) which is more costly, largely due to legal fees, more time consuming and usually more stressful.

Mediation is a collaborative approach; finding an outcome that both parties are happy with and avoids the win-lose approach that court can have.  Mediation is voluntary however mediation is your friend and if matters can be resolved in mediation then this is the best outcome for all involved as whatever settlement is reached remains confidential, keeping both employer and employee reputation intact.

When can I use Mediation?

Mediation can be used after employment ends and for employment problems while the employee is still working for the employer.  Issues such as bullying and harassment claims, issues between teams, collective bargaining with unions, strikes, lockouts and of course personal grievances like unjustified disadvantage or unjustified dismissal.

I Want to go to Mediation but What is the Process?

You have an employment problem that is not being resolved by speaking to the other party involved.  You’re starting to get a bit frustrated and have decided that mediation could help resolve the issue. So what do you do?

Mediation applications are found online. There is a Mediation Pre-application form above the Request Mediation button and this is a useful tool to use before you Request Mediation.  It gets you thinking of the issues and what supporting documentation you should attach.  Giving the mediator lots of information while sticking to the facts will give them a good sense of what the issue is about.

How do I apply for mediation online?

  1. Go to Employment.govt.nz and click on Resolving Problems, then Steps to Resolve, Mediation and Request Mediation
  2. Both parties are then contacted by Employment Mediation Services Staff and a suitable time and place for mediation to take place is arranged. (During Alert Levels 2, 3 and 4 COVID-19 Restrictions, all mediation will be done via phone or zoom video calls).
  3. Once it is convened (whether at a physical venue or via phone or zoom), the Mediator will speak to each party separately before group discussions take place.
  4. Discussion and negotiations take place.
  5. Settlement is reached, and a section 149 Record of Settlement will record the settlement details with both parties signing it and the mediator will sign this off, ensuring the settlement is full, final and confidential. The matter is now settled, usually within hours of entering Mediation.
  6. If settlement cannot be reached at mediation, you can either choose to adjourn the process and come back to mediation after a period of time, you can keep negotiating after Mediation and perhaps leave an offer on the table for a set time (seven days perhaps for thinking time) or the matter can be taken further to the Employment Relations Authority.

The Dos and Don’ts of Mediation

DO:

  • Stick to the facts. Try to keep emotions out of it even though emotions can be running high.
  • Remain calm, focused, and open minded.
  • Be collaborative and conciliatory. You should have the problem-solving mindset of working together to find a satisfactory outcome of both parties.
  • Put yourself in the other parties’ position to help give you perspective.
  • Focus on the issues, not the person. Try to keep personality out of it, stick to the issues involved not the person involved.
  • Listen for understanding. This will help you identify the other parties ’underlying need and concern.  If you can understand for example that what they really want is an apology as opposed to money, then negotiations may reach settlement quicker with this in mind.  Alternatively, perhaps they just need enough money from the mediation process to pay their rent while they look for another job and will accept the termination of their employment if the figure will satisfy their rent requirements to reach settlement.

DON’T:

  • Be aggressive and have an opponent mentality.
  • Make personal attacks or use accusatory language, such as “you always singled me out in front of others” or “you are the worst manager I have ever had.”
  • Act like you are in a courtroom. The other party is not on trial.
  • Refuse to compromise. If the matter escalates to the Employment Relations Authority you may end up worse off than if you had of compromised and reached a mutually agreeable settlement at Mediation.
  • Get caught up on small details, look at the big picture instead. There are worse alternatives to a negotiated agreement such as lost time and productivity, huge legal fees, and loss of confidentiality if it escalates to the ERA and this can be damaging to the reputation of both employer and employee.

Other Points to Note About Mediation

Yes, you can have a legal representative with you, or an employee advocate, an HR consultant or a Union Rep.  You could bring a friend or family member as support or a community leader. Other people in the room could be an interpreter if required.

Keep the Lines of Communication Open

Keen to settle but want to informally discuss what the other party will settle for so an offer can be made? “Fireside chats” (without prejudice discussions) can take place in negotiations prior or after mediation.  These are discussions around what you might settle but can’t be used against you in court. Be careful to ensure all communications are clearly noted “without prejudice” otherwise they are admissible. It is wise to use a legal representative for without prejudice discussions as these are normally only used for serious employment problems.

It’s Not All About Money

Maybe their bottom line is a “Sorry.” Apologies can speed up resolution processes. Sometimes an aggrieved party just wants to hear the words and be assured that they won’t repeat the behavior again. Hearing the other party say sorry and be genuinely apologetic can ensure parties can heal and move on.  Mediation can be a cathartic experience for those seeking a humble apology.

Make Sure You Know What a Settlement is For

If there is a settlement that includes a payment for hurt and humiliation, remember that Hurt and Humiliation payments are non-taxable but payment for lost wages are. The employee may settle for a figure that comprises both hurt and humiliation and a payment for any lost wages so be careful about knowing the difference and taxing these payments accordingly.

Be Mindful of Timelines

Mediators can set time limits for mediation with the agreement of parties involved.  Parties may agree that if the matter is not resolved for example within 5 hours, the Mediator can then make a recommendation in writing about the solution and the date it will become binding.  You can accept or decline the recommendation before the date it becomes binding and if it is not rejected it becomes fill, final and enforceable.

If you are an employer and have employer insurance, you will need to follow the advice of the Insurer who will likely take the matter over and recommend you attend mediation and advise what you should settle for.

Final Thoughts

Mediation is a fantastic way to collaboratively and openly nip employment problems in the bud. Settling by way of mutual agreement which means buy-in of both parties and a salvageable employment relationship in some cases.  Mediation is a quick and easy dispute resolution service that is cost effective for everyone involved. So if you find yourself in a situation where you are unable to resolve an employment issue yourself by talking to the other party involved, apply online for mediation to get it resolved and get back to doing the things you’d rather be doing.