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What to expect at an employment mediation – Employment Litigation/ Tribunals



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Most employment disputes will end up at mediation at some point.
This is because the Employment Relations Authority (the
Authority) has a duty to consider directing the
parties to attend mediation if they have not done so already by the
time that they get to the Authority. It is very rare that the
Authority will not direct a matter to mediation. For this reason,
parties will also often agree to attend mediation voluntarily
before getting to that point.

Therefore, it is good for employers and employees to familiarise
themselves with the process and to know what to expect at
mediation.

What is mediation?

The Ministry of Business, Innovation and Employment
(MBIE) offers a great free mediation service that
can assist parties to resolve employment disputes.

Mediation can be used while an employee is still employed, or
after termination where an employee has raised a personal grievance
or other dispute.

Mediation involves an impartial mediator facilitating a meeting
to help employers and employees resolve a dispute. Depending on the
nature of the issues, resolution could involve a range of different
outcomes. If the employee remains employed, the discussion may
focus on resolving the issues to enable the employee to confidently
return to work, or it could turn into a discussion around the
employee’s exit from the business. If an employee is no longer
employed, resolution will usually be focussed on some sort of
monetary settlement.

While it is not required, it is common for legal representatives
to attend mediation alongside employees and employers.

Getting a date

Mediation can be applied for on MBIE’s website by either
party, or their representative. When the employee remains employed,
a mediation date will be prioritised, and can usually occur quite
quickly. When the employee is no longer employed, it can take a
little longer due to MBIE availability. However, often you can get
a mediation date within a month of applying for mediation
(depending on the parties’ availability).

The current default is that mediation will be conducted remotely
by Zoom, unless an in-person mediation is specifically requested.
Generally, we find that remote mediations work well, but recognise
that there may be circumstances where an in-person mediation may be
more appropriate.

The mediation process

At mediation, the parties and their representatives will sit
around a table (in person or virtually) with a mediator and each
will have a turn at presenting their position (also known as a
‘opening’). The employee will usually go first, followed by
the employer. It is ultimately up to an employee to outline their
claim and to set out what outcomes they are seeking from
mediation.

The parties will then retire to separate breakout rooms and the
mediator will speak to them in turn and assist with negotiations by
going back and forth between the parties. Where the employee has
already left their employment, it is unlikely that the parties will
see each other again after this point. However, if the employee is
still employed, then the discussion may be more collaborative.

The mediator can only help the parties to reach a mutual
agreement and will not impose a decision or outcome on the parties.
If an agreement is reached at mediation, the mediator will prepare
a record of settlement for the parties to sign on the day.

Benefits

There are many benefits to mediation. Not only is it a free and
confidential service (the process and negotiations are always
without prejudice), but it is well proven to settle employment
disputes quickly and without requiring the parties to endure
lengthy, expensive and public litigation.

Preparation

In our view it is crucial that the parties are well prepared
ahead of mediation, including having a written opening statement to
read out. While the parties would have already likely exchanged
some correspondence about their respective positions prior to
mediating, a good opening statement is also for the benefit of a
mediator, who plays a big part in pointing out the risks and
strengths to each party throughout mediation.

Preparation also means having an understanding of the legal
issues at stake and the potential outcomes if the case were to
proceed to the Authority. This is why it is helpful for both
employers and employees to have a representative throughout the
process. Generally, having a representative also alleviates the
pressure and stress of the process for the parties, and removes
focus from the emotions involved to the issues at hand.

Our specialist employment team regularly prepare for and attend
mediations with clients. They are also experienced at negotiating
employee exits and settlements. Should you or your business require
assistance with this, please do not hesitate to get in touch.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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