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 binding decision.
You may choose to have representation throughout the mediation process.
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 889KB]. 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 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.
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 carried out 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.
Requirement to report a dismissal or resignation to a professional body overrides the full and final nature of a record of settlement during mediation.
In these cases, the information disclosed about the mediation does not fall within the statutory definition of confidentiality in the Employment Relations Act. For teachers, nurses and similar professionals there is a requirement that the employer notifies the appropriate professional body following the resignation of an employee or their dismissal in some circumstances. The Education Act, for instance, makes such reports mandatory for teachers where misconduct or competence is being investigated at the time.
It is probably wise to address the need for notifications when negotiating a mediation settlement, rather than to surprise the former employee and risk a challenge to the settlement.
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.
Tools and Resources
Mediation workbook: Preparing for mediation - PDF 600KB
A workbook to help you sort your thoughts before mediation.
Using Mediation Services effectively - PDF 1.4MB
A guide to help employers and employees use Employment Mediation Services effectively.
Mediator Code of Ethics: Employment Mediation Services - PDF 889KB
Outlines the standards that apply to MBIE's mediators.
Mediation: What to expect - PDF 377KB
A quick guide to mediation.
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