When an agreement is reached
Usually when an agreement is reached, the mediator will record the details of this agreement in a record of settlement. You, the other party and the mediator will sign the record of settlement and you’ll each be given a copy to take away.
See our template of a record of settlement to get a better understanding of what this looks like.
If you change your mind
A record of settlement is final; once it is signed by the mediator you cannot go to the Employment Relations Authority (ERA) or the Employment Court if you don’t like what you have agreed to. Be clear about what you agree to and be sure it is acceptable to you. It’s a good idea to get some advice before signing.
If the agreement is not kept
If one party does not do what the record of settlement says, for example, make a payment, the other party may apply to the ERA or the Employment Court to enforce the agreement. Even if an agreement is reached outside of mediation, and is later signed by a mediator, it can still be enforced in the same way.
It’s a good idea to contact the mediator first for help with encouraging parties to comply with the agreement before going to the ERA or the Employment Court.
When an agreement can't be reached
Sometimes you will end up not agreeing on an answer to the problem. If this happens, the mediator will help you to work through other available options.
If it looks like more information or assistance could lead to a settlement, the mediator can arrange an adjournment or extend the process. You can agree on a time to meet again with the mediator, or make a commitment to work things through yourselves and contact the mediator for help or to record an agreement.
Mediator recommendations and decisions
At any time during the mediation process, you and the other party can agree to give mediator from MBIE’s Employment Mediation Services the power to make a recommendation about the solution or the power to make a binding decision.
This must be done in writing. The mediator will provide you with the appropriate forms.
The power to make a recommendation
The mediator will make a written suggestion about how the problem might be solved. This will include a date when the recommendation will become binding.
You’ll then have an opportunity to consider accepting or rejecting the recommendation. If you or the other party don’t reject the recommendation before the specified date, it will automatically become full, final and enforceable like a record of settlement.
Notice of a rejection of a recommendation must be sent to MBIE by:
- registered mail,
- email, or
- another notification method agreed by the parties.
If the recommendation is rejected you may get further mediation services.
A recommendation is not a final resort. It might mean that the problem is resolved quickly and will save time and costs. It is not intended to replace your right to reach an agreement among yourselves or to have your employment problem decided by the ERA.
It is important to know that anything said during mediation and all documents prepared for mediation, including the records of settlement, are confidential.
Taking your employment problem further
If these options are not acceptable, the mediation process ends. In this case, you may choose to live with your differences and take no further action.
If you have a legal claim, you may take the matter to the ERA or the Employment Court. These institutions can direct you to try mediation again if they believe you should be able to reach an agreement.