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What is mediation

Mediation is where an independent person called a mediator helps an employee and an employer resolve an employment relationship problem in a semi-formal and confidential environment.

Mediation is voluntary. However, participation in mediation can be seen as part of the good-faith duties of an employment relationship. If you choose not to take part, the other party might be able to take their complaint to the Employment Relations Authority (ERA) which can require you to attend mediation.

The mediation process

Each mediation is different and has its own format. It can involve different types of activities, such as:

  • Early assistance
    This may be through email and telephone conversations. A mediator will see if there’s a way of sorting out the problem without needing a mediation meeting.
  • A mediation meeting
    This is when parties meet with a mediator in a semi-formal environment.
  • A record of settlement
    If the parties agree to a solution this will be written down in a record of settlement. This is legally binding and the parties cannot come back to it, for example, once a record of settlement is signed by the parties and a mediator from the Employment Mediation Services, you may not take the other person to the ERA if it relates to the same issue.
  • Giving the mediator powers
    If both parties agree, you can give the mediator the power to either make a written recommendation (or a mediator from the Employment Mediation Services can make binding decisions).

You may choose to have representation throughout the mediation process.

The mediators

Mediators are not on the side of either party. They are independent people committed to helping parties to resolve the problem. They must withdraw from any case if they think they might have a conflict of interest.

Mediators from the Employment Mediations Services are obliged to follow the Mediators’ Code of Ethics [PDF, 889 KB]. If you believe that your Employment Mediation Services mediator has acted unfairly and would like to make a complaint, contact us.

Mediators can come from a variety of different backgrounds and can have:

  • extensive training in resolving disputes
  • an in depth understanding of employment law
  • a clear picture of current trends in workplaces.

A mediator’s role is to:

  • encourage parties to identify the real issues
  • help the parties explain those issues to each other
  • identify points of agreement between the two parties
  • help people find a way through their problem that may not seem immediately apparent
  • help parties to find a resolution that allows both parties to put the issues behind them
  • provide an assessment of the risks if the problem is not resolved and proceeds further.

A mediator may participate in workplace discussion and education activities.

Confidentiality

All documents and any terms of settlement reached in mediation are confidential.

All information from mediation is confidential. This means it may not be shared with anyone outside of the mediation process. Because of this, what happens in mediation cannot be used as evidence in the Employment Relations Authority or Employment Court.

The parties can agree to waive the confidentiality. Mediation done by Employment Mediation Services in the course of collective bargaining may not be confidential.

Information that is shared during mediation but was created outside the mediation process is not confidential.

Employment Mediation Services

Employment Mediation Services within the Ministry of Business, Innovation and Employment (MBIE) is a free mediation service for any employee or employer with an employment relationship problem.

If you have a dispute that you’re unable to solve together, Employment Mediation Services can arrange a mediation to help you to sort out the problem.

To access Employment Mediation Services you can make a Request for Mediation.

Private mediation outside Employment Mediation Services

Private mediation is also available, however, there are costs involved in employing a private mediator. Part of any agreement to use private mediation should include details on how much and who pays.

Only mediators from Employment Mediation Services have the authority to sign a record of settlement so that it is enforceable in the Employment Relations Authority. If a private mediator is used, a mediator from Employment Mediation Services can be asked to sign the settlement agreement so that it’s enforceable in the Employment Relations Authority.

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