When parties find themselves involved in a dispute with their employer or a co-worker, mediation can help resolve the issue.
Mediation is good next step to consider if the parties are not able to resolve the matter through direct discussions. Mediation is particularly helpful in situations where the parties will continue working or interacting with each other. It can also be a way to successfully end an employment relationship.
What is mediation?
Mediation is a process in which a neutral third party, called a mediator, helps two or more parties in a dispute reach an agreed outcome.
The mediator does not take sides or make decisions for the parties. Instead, the mediator helps the parties to communicate better, to understand each other’s
perspectives, and to try and find a solution to the problem.
Mediation is voluntary, but some tribunals like the Employment Relations Authority, can direct parties to attend mediation before they commence proceedings. Mediation is in any event much less costly, time consuming and stressful than litigation, so its a good idea to give it a go.
Mediation is often more successful than litigation too, because it is a collaborative process. The parties are able to come up with more creative solutions to meet their individual and combined needs.
How does mediation work?
Mediation for employment related disputes is provided free of charge by the Ministry of Business Innovation and Employment (‘MBIE’). Private mediation is also available but the parties will have to pay for this themselves. If the parties want lawyers to attend they will also have to pay their legal costs.
Any employee or employer can apply to MBIE for mediation. MBIE will allocate a mediator to the dispute. If the parties want to chose their own mediator, private mediation might be the best way to proceed. Private mediators can be selected according to their experience, training or familiarity with a particular industry.
After first contact with a private mediator, they will reach out to the other party to confirm their agreement to attend mediation. MBIE usually does this with its online system.
It may take a couple of weeks to get a mediation date through MBIE, but if the issue is urgent, parties can ask for their matter to be prioritised. The time it will take to get a mediation date will vary, depending on how many other matters are awaiting mediation through MBIE. Private mediation can be arranged according to the parties capacity and availability (and may happen much faster).
The format of mediation can be varied to meet the parties needs. Mediation can take place in person, over the phone or by video conferencing. MBIE has venues and equipment around the country, which parties can used for free. Private mediation usually takes place at a time and place, agreed between the parties. There may be additional costs involved (for instance to rent a venue).
The parties can agree who they want to attend with them, and how much time they want to commit to the process. Mediation through MBIE is usually for a full day or a half day, but parties can also continue discussions between themselves, or with the assistance of the mediator, depending on the circumstances. Private mediation can be more flexible in terms of timing.
When the parties turn up for mediation they will usually go onto separate rooms, to meet alone with the mediator on their own. After this, if everyone is happy to proceed, they will come together. The mediator will open the mediation by setting the ground rules about conduct and confidentiality.
During mediation, each person will get an opportunity to explain the problem from their perspective, without being interrupted. Usually the person who raised the issue will talk first. Once everyone has had a chance to talk, there may be an opportunity to ask questions of each other.
The parties can take breaks and may go into separate rooms. The mediator may continue the mediation with the parties in separate rooms, by passing communications between the parties (but only if they agree). This is called ‘shuttle mediation’. Everything else discussed with the mediator in private, will stay confidential and will not be passed onto the other party.
If the parties reach an agreement, the mediator can help the parties write it down. A mediator can also help the parties turn the agreement into a binding and enforceable document.
What are the benefits of mediation?
- It is less expensive and time-consuming than litigation.
Mediation can save the parties a significant amount of money in legal fees and court costs. It can also save them time, as mediation is typically a shorter process than litigation.
- It is more flexible and informal than litigation.
Mediation can be held at a time and place convenient for the parties, and the process can be tailored to their specific needs. There are no formal rules of evidence or procedure in mediation, which can make it a more relaxed and comfortable process for the parties. Mediation can also cater for specific needs (like incorporating tikanga Moari into the process).
- It is confidential.
Everything that is said in mediation is confidential, and it cannot be used in court. This can help the parties to be more open and honest with each other. Frank discussions increases the chances of an agreed outcome that is readily implemented by the parties.
- It can help to preserve relationships.
Mediation is much better at preserve the relationship between the parties, and sometimes repairs damaged relationships. This is especially important in cases where the parties have to continue interacting (for instance business partners, co-workers, family members, or neighbours). Mediation is focussed on solutions, rather than on attributing blame.
- It can lead to a more creative and mutually beneficial outcome.
In mediation, the parties are free to come up with solutions that meet their individual needs. This can lead to a more creative and mutually beneficial outcome than what might be possible through litigation. An example of this is that the parties may agree to apologise to each other (which is not something a court would order).
When should I consider mediation?
Mediation is a great option if you have a dispute with someone, and you cannot agree on a solution. If you cannot walk away from the dispute, but you do not want to spend a lot of time and money on court proceedings, mediation might be right for you.
Often parties are reluctant to try mediation because they think their dispute is not serious enough, or because they think the other party won’t agree to attend. Mediation is actually perfectly suited to resolve more minor issues before they escalate. The earlier a dispute goes to mediation, the greater the chance it will be successful.
Mediation is not always successful, but it remains a good option because of the low risk of ending up with an undesirable outcome, and the comparatively low investment of time and money compared to other options.
What can I do if the other party does not agree to go to mediation?
Explaining the benefits of mediation to a reluctant party may help them see the advantage of attending. You can ask your lawyer to contact the other party to seek their agreement if you feel uncomfortable doing it it on your own.
Do I need a lawyer to attend mediation with me?
Mediation is not a substitute for legal advice and the mediators role is not to advise you (even if they are a lawyer). If you are considering mediation, you may first want to understand your legal position. You can also ask a lawyer to help you prepare for mediation, or to attend mediation with you.
If you are in need of legal advice or representation for a dispute you are involved in, or if you need a mediator, Empower Law can assist with both.
