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Preparing for mediation

You can use our Mediation Workbook to think through the facts and prepare for the mediation.

You are not required to prepare a written submission for the meeting, but you should think through the facts of your case and make some notes for your own use.

You can use our Mediation Workbook [PDF, 600 KB] to help with your preparation for the meeting. The workbook is designed to help you plan what’s important to say and how to say it.

While there are no strict requirements, you should be prepared to explain:

  • your side of the story, for example:
    Frank feels like his workmates have been bullying him and his boss, Tania, has done nothing to stop it.
  • the issue of the dispute, that is, what you and the other person disagree about, for example:
    Frank believes his boss Tania should talk to his workmates about bullying him. Tania thinks that Frank is being sensitive and that his workmates are only joking around with him.
  • any evidence to support what you are saying, for example:
    Frank has some text messages from his workmates which he thinks show bullying.
  • what your employment relationship was like before the problem developed, for example:
    Frank was a reliable employee with a good relationship with his boss Tania.
  • what you are seeking (be as specific if you can), for example:
    Frank wants his boss Tania to talk to his workmates about bullying and to give him a written apology.

To get the most out of mediation you must be prepared to:

  • listen to the other person’s point of view and accept that this is how they see the world, even if you do not agree with what they say
  • acknowledge anything you might have done differently or better
  • be honest and open about what has happened
  • have an open mind about options for resolution
  • bend a little to reach agreement.

An important function of mediation is working through your issue, having a chance to say what you feel and to be heard by the other party. It gives you a chance to voice your concerns and have them genuinely considered by the other person. Often, problems are just a result of misunderstandings.

The meeting

A mediation meeting is a semi-formal process. It is not like going to court. You are not under oath and you will not be cross-examined. Anything said throughout is confidential and cannot be used against you in any later proceedings in the Employment Relations Authority (ERA) or the Employment Court.

Who attends a mediation meeting

You, the other party and a mediator are the only people who must attend.

You may have representation during the mediation meeting. You can also bring a support person.

How long does a mediation meeting take?

Mediation meetings vary in length depending on the issues and the attitudes of the parties.

They usually last around 3 or 4 hours, but some can last all day. If it looks like more time could lead to a settlement, the mediator might arrange an adjournment. This means that the mediator will continue to work with both parties and possibly arrange a further mediation meeting.

Setting the scene

At the beginning, the mediator will:

  • Outline the process.
    • Feel free to ask any questions and let the mediator know if you are uncomfortable with any aspect of the process
  • Allow you and the other party to have an uninterrupted opportunity to give your side of the story.
    • During this time you should make any supporting documents or information available to the mediator and other party
  • Allow you and the other party to indicate the outcome you’re looking for.
    • Be truthful about the outcome you really want.
    • For example, if an employee believes the working relationship is beyond repair, they might ask for a good reference and compensation for their stress and costs. If an employer is considering reinstatement, it’s best to say so at the start. Clearly stating your goals will not work against you.

Working through the issues

Next the mediator will help you and the other party identify and discuss each issue. During this time the mediator may:

  • question both sides further
  • ask whether particular responses to the problem have been considered
  • help provide information about a document or legal issue
  • discuss the potential risks to each party, such as costs, injury to reputation, reduced employee productivity and further legal action.

During this time you may:

  • ask the other party questions
  • be required to answer the other party’s questions
  • ask the mediator questions.

Throughout this process the mediator will:

  • make sure a fair process happens that will allow both parties to participate fully
  • manage each party’s expectations and emotions
  • focus each party’s attention on reaching a successful outcome
  • record areas of basic agreement
  • offer ways to resolve the issue.

If the process becomes tense, it’s the mediator’s job to make sure things keep going smoothly. It’s common to take a break and for the mediator to check with each party individually about how things are going.

Finding a solution

As the discussion continues, potential solutions may be identified. The details of these solutions may need to be negotiated, for example, an employer might agree to financially compensate an employee. In this event, the payment amount will be negotiated between parties. The mediator will often put each party in separate rooms and go between the rooms communicating offers and counter offers.

You should have an open mind about options for resolution and be prepared to bend a little to reach an agreement.

Some examples of common solutions include:

  • an agreement not to speak ill of each other after the mediation
  • a personal apology
  • an employer may provide a reference to an employee to help them get a new job
  • reinstatement - this is where the employer gives the employer his or her job back
  • financial compensation

You can agree to outcomes in mediation which might not be available in the ERA. If the matter goes to the ERA, the possible outcomes are limited to those provided by the law.

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