Resources
Employment mediation
Overview of employment mediation
Employment mediation is a confidential, facilitated process designed to help parties resolve personal grievances and other employment relationship problems without the need for formal investigation or litigation. Mediation is strongly encouraged in New Zealand’s employment law framework and is often the first structured step taken once a dispute arises. In many cases, mediation provides a faster, less adversarial, and more cost-effective way to resolve employment disputes than proceeding directly to the Employment Relations Authority or Employment Court.
Important note on currency
This section was originally published on CourtKeys in 2015 as part of a public legal education project. While it remains useful for understanding general legal concepts and processes, some information may now be out of date. Updated and revised material is included in Civil Litigation for Non-Lawyers. This article is provided for general information only and does not constitute legal advice.
The role of mediation in employment disputes
Mediation is often occurs when a personal grievance or other employment relationship problem arises. The Employment Relations Authority is actually required to consider referring the parties to mediation by section 159 of the Employment Relations Act 2000:
(1) Where any matter comes before the Authority for determination, the Authority –
(a) must, whether through a member or through an officer, first consider whether an attempt has been made to resolve the matter by the use of mediation; and
(b) must direct that mediation or further mediation, as the case may require, be used before the Authority investigates the matter, unless the Authority considers that the use of mediation or further mediation –
(i) will not contribute constructively to resolving the matter; or
(ii) will not, in all the circumstances, be in the public interest; or
(iii) will undermine the urgent or interim nature of the proceedings; or
(iv) will be otherwise impractical or inappropriate in the circumstances; and
(c) must, in the course of investigating any matter, consider from time to time, as the Authority thinks fit, whether to direct the parties to mediation.
Consequently, an invitation to attend mediation will often accompany notice of a personal grievance or other employment relationship problem. It may suit all involved to attempt to resolve any issues between themselves at first, then attend mediation, and then apply to the Employment Relations Authority only where mediation is unsuccessful. See those parts of this text dealing with mediation for more information about mediations generally.
Employment mediation services
The Ministry of Business, Innovation and Employment provides free employment mediation services through its Department of Labour. Such mediations are held in confidence, so things said in the course of them are not to be submitted as evidence if matters end up before the Employment Relations Authority or Employment Court.
To go about setting up a mediation you might, first, obtain consent to mediate by the other party involved in an employment relationship problem, find out the availability of those who are to be involved in the mediation and then approach Mediation Services for a mediation at a time when all involved are available.
You should consider including copies of correspondence and other relevant documents concerning the employment relationship problem with any written request for mediation. This is because the mediator might ask to see such documents before the mediation anyway. That would help the mediator to prepare.
Notice of mediation
After you have made your request for mediation, Mediation Services should contact you to advise when and where the mediation will be held, or otherwise arrange a place and a time suitable to all involved.
Preparing for an employment mediation
There may be little to do by way of preparation for a mediation other than to consider the position of the other party involved and what might be an acceptable outcome. See the pages about negotiation, mediation and settlement for some idea of what you might expect.
For problems that are complex, you might consider preparing a statement of position and bundle of documents to assist all parties to understand your position and the evidence that supports it.
A statement of position could set out the points that support your view of the problem like a synopsis of submissions. See the pages dealing with synopses of submissions for how you might go about preparing a statement of position.
A bundle of documents could include evidence such as letters and email that support your position. See the parts of this website dealing with bundles of documents for more about these.
Attending an employment mediation
See pages on negotiation, mediation and settlement for some idea of what you might expect. The parts of this website dealing with appearing in court are also relevant to the extent they give you some idea about how you might conduct yourself in a structured dispute resolution context.
Failure to settle at mediation
Several options are available to parties who are unable to settle their differences in an employment mediation:
1. Do nothing.
This is unlikely to be a satisfactory outcome for the party who raised the employment relationship problem.
2. Have the mediator make a recommendation.
The parties could agree to have the mediator make a recommendation that becomes the final and binding outcome unless a party gives written notice of rejection.
3. Have the mediator make a decision.
The parties could agree that the mediator is to decide the outcome. The decision would be final, binding and cannot be appealed.
4. Progress the employment relationship problem to the Employment Relations Authority or Employment Court.
See sections on ‘applying to the Employment Relations Authority’ for more about progressing claims in that forum.
Disclaimer
All legal information published on this website is general information about New Zealand law only. It is not legal advice or a substitute for legal advice. It does not address specific circumstances of any particular individual or entity. It may not reflect current law, practice or legal requirements. No warranty, guarantee or undertaking is made about the accuracy or completeness of the information, or about results that may be obtained from the information. No responsibility or liability is assumed or accepted for any actions taken or not taken based on use of the information, or for any direct or indirect losses or damage of any kind arising from use of the information. Specific legal advice should be obtained from a lawyer about any circumstances.