What to Expect at an Employment Mediation

It is common for parties to attend mediation as part of an employment dispute or personal grievance claim.

Mediation is also useful for resolving problems in ongoing employment relationships or collective bargaining.  Parties may agree to attend mediation voluntarily or be directed to attend by the Employment Relations Authority (ERA).   

If an application is made in the ERA and parties haven’t already been to mediation, the ERA will almost always direct them to mediate as a first step.  The ERA may also direct parties to mediate in the course of investigating any matter.  

 What is a employment mediation? 

Employment mediations are essentially a meeting between a mediator (who is impartial and independent) and the parties.  A mediator’s role is to facilitate the meeting and assist the parties to identify the issues and see if they can find a resolution.  

Attending mediation allows parties the chance to discuss matters openly, to consider alternatives and to possibly find resolution to avoid the time and cost of litigation. 

If a resolution is achieved at mediation, it also allows parties to ‘control the narrative’ to some extent.  Even if resolution is not achieved, mediations are usually still valuable as parties walk away with a better understanding of each other’s positions.  

Mediation is confidential and ‘without prejudice’, meaning the discussions that happen during mediation are private and cannot later be used in evidence.  However, parties may consent to disclosure.  

The Ministry of Business, Innovation and Employment (MBIE) provides a mediator and venue at no cost. MBIE mediations are usually what people think of when talking about mediations in the employment context.      

Parties may use private mediators but that comes at a cost and is less common.  In saying that they are a good alternative where matters are complex or particularly urgent. 

Getting a date with MBIE

MBIE mediations can be applied for on MBIE’s website by either party or their representative.   There is currently high demand and this is causing long wait times.  Current guidance from MBIE states a date will be offered within 7 weeks of application. 

MBIE promotes mediations to take place virtually as it can minimise wait times.  However, wherever possible, our preference is for parties to get around a table and mediate in person, as it allows for more effective communication between parties. 

The wait times with MBIE cause obvious frustrations for parties, particularly when matters have not been capable of resolution internally and parties are reliant on third party support.  There is always the option to do private mediations if there are delays.  

The mediation 

Every case is different but the usual process in a MBIE mediation is as follows: 

• Parties and a mediator start in the same room (virtually or in person) and parties take turns at presenting their positions.  They then have the opportunity to ask questions, respond to one another and flesh out the issues. 

• Parties retire to separate rooms and a mediator meets with them individually.  This allows a mediator to explore the parties’ intentions and ‘ideal outcomes’.  Negotiations may also take place with a mediator acting as facilitator.   

• Parties may be brought back together to continue discussions.   

Mediators only help the parties to reach a mutual agreement and will not impose a decision or outcome on the parties.   

If resolution is reached between the parties, a mediator will prepare a settlement agreement, which is binding on the parties, for signing that day. 

Legal representation  

It’s common for legal representatives to attend mediation alongside employers and employees.  It helps manage the stress that can come with attending a mediation and ensures that parties have a clear understanding of their legal position, including on matters that may require compromise in order to achieve a resolution, protocols, and on terms of a settlement agreement (if relevant).  

Even where resolution at mediation is not the preferred outcome, having specialist support from this stage is important so you know ‘what comes next’.  

Our employment team regularly prepare for and attend mediations with clients.  They are also experienced at negotiating employee exits and settlements.  Should you or your business require assistance with this, please do not hesitate to get in touch.