What you should expect
Mediation is a safe, voluntary and confidential way to sort out an employment relationship problem
- You can attend mediation by yourself if you wish – you don’t have to use a professional representative or advocate to represent you. The mediator will make sure that you’re not disadvantaged and will support you during the mediation process.
- You can also bring a support person (for example: a friend, whānau member or a leader from your community).
You may also bring a union representative and/or use the professional services of an employment advocate or lawyer. If you use a professional representative to help you at mediation, it is important to understand what to expect from them. It may also be a good idea to choose a representative who is a member of a professional organisation (e.g. the Law Society or the Employment Law Institute of New Zealand (ELINZ), Represents Employment Law). These professional organisations have Code of Ethics or Service Standards and they can support you, if there is an issue with the service you received.
Preparing for mediation
Your representative or advocate should help you prepare for mediation. They should
- talk with you before the mediation to identify the main problem
- help you to decide what would fix the problem for you
- tell you about the mediation process so that you know what to expect on the day.
It is particularly important that you are aware of the confidential nature of the mediation process. You must to have the authority to enter into a settlement or agreement with the other party on the day of the mediation.
Your representative should talk to you before mediation about what might happen if your problem is not resolved at mediation. For example: they should discuss that you or the other party may choose to take their case further, this could mean an investigation meeting at the Employment Relations Authority or a hearing at Employment Court.
Your representative may take care of the mediation application process for you. If this is the case, please make sure that you let them know of any:
- health, safety and security concerns (such as previous aggressive behaviour by any party involved in the mediation) or
- cultural considerations (such as language or protocols) to be observed.
Your representative must let you and the mediation services know if they will not be at the mediation with you in person (for example, joining the mediation by telephone).
Preparation also means that you should arrive at mediation with your representative 15 minutes before the start time.
Cost of professional assistance
Professional assistance is not free; your representative is likely to charge you for their service. It is a good idea to talk about service fees before mediation. Your representative should be able to give you an estimate of their costs at each stage. It is your responsibility to pay your representative regardless of the outcome of mediation.
Your representative at mediation
On the day of mediation, your professional representative should support you throughout the mediation and represent your best interests. They should:
- be with you at the mediation, unless previously arranged with you and the mediation service
- help you in telling your story to the other person
- help you in understanding all kinds of settlement options and you negotiate solutions that best suit your needs
- make sure that you are in a good frame of mind to make decisions
- keep you involved throughout the process and help you to participate as much as you can
- listen carefully at all stages of mediation as people tell their stories, and remain open-minded so that they can help you decide your best course of action; and
- remain calm and be focussed on supporting you at all times
Professional representatives should always act in ‘good faith’ at mediation. This means they should always be courteous, helpful and respectful of you, the mediator, and others who attend the mediation, including other representatives.
Role of the mediator
It is important that you and your representative understand the role of the mediator. The mediator is there to help both parties and manage the mediation process.
The mediator will:
- decide what process will most effectively deal with your problem
- decide what information will be brought into mediation
- share in private session with each party their view on what might be the legal, personal or other kinds of risks in taking their case further; and
- bring things ‘back on track’ if the parties lose focus on resolving the issue.
The mediator might talk to you without your representative being present, if they think this is the best way to help you resolve your employment problem.
If an agreement is reached, the mediator will prepare a legally binding mediation settlement document. Your representative will assist you in checking the settlement to make sure it reflects what you have agreed before you sign anything.
If you have any concerns about the conduct of your representative at mediation, you can
- complain to the representative’s professional body; or
- contact the Director of Dispute Resolution about your concerns. MBIE has published terms of engagement for representatives
Email MediationService@mbie.govt.nz if you consider any of the terms of engagement have not been upheld.
Please remember: at the end of the mediation process it is always ‘your call’. The mediation session is your opportunity to talk about your employment problem and work on a resolution with the other party.