Mediation in employment issues in NZ is voluntary, and its free to all users

It is seen as part of the good-faith process of employment relationships. If offered mediation you can choose not to take part, but the other party might be able to take their complaint to the Employment Relations Authority (ERA) which may then require you to attend mediation.

Every mediation is different and will have its own merits. It may comprise different parts 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 revisit it later, for example, once a record of settlement is signed by the parties and by 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 you cannot reach an agreement, you can ask the mediator to either make a written recommendation or binding decision.

Mediators are provided free by MBIE and are impartial. They are independent and committed to helping you find a resolution to your 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. Should you think your mediator was not impartial you can make a complaint via MBIE

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 then

• 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.

Confidentiality.

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

What happens in mediation and what outcomes are arrived at cannot 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.

However, parties can agree to waive the confidentiality. For instance mediation carried out by Employment Mediation Services in relation to collective bargaining may not be confidential.

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

Exception

A 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 such 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.

Remember mediation is free, and may be accessed by contact the Employment Mediation Service on line at :  https://dispute.employment.govt.nz/