Details, Fiction and Employment Law Advice NZ



What is Employment 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 binding decision.

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 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 here 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.

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