From my experience, the mention of mediation can make employers sweat………but in reality, there is nothing to be afraid of.
The most standard form of mediation in the New Zealand workplace is where a Ministry of Business, Innovation and Employment (MBIE) Mediator will facilitate a process for two parties to resolve an employment relationship.
This is typically how things get to that point:
1. Employee raises a personal grievance (PG) to their employer, or former employer. NB – The grievance must be raised within 90 days of the problem in question occurring.
2. In most cases the author of the PG will request the employer attends mediation to resolve/settle the problem. On some occasions a problem may get resolved prior to any mediated settlement occurring.
3. The employer decides to attend mediation or not. NB - the employer is not obliged to attend mediation…..this is an important point to consider.
4. If you as the employer choose not to attend mediation you are likely to be confident in your employment processes and do not wish to resolve the problem through mediation/settlement. Please note that the Employment Relations Authority (ERA) may direct you to mediation. If you are directed to attend mediation by the ERA, you are then obliged to attend, however you have no obligation to settle the problem at mediation.
5. If you choose to attend mediation you are likely to feel that you want the problem to go away and wish to negotiate a settlement that is agreeable to both parties. If this is the case, you may endeavour to reach this agreement or settlement prior to mediation.
6. If an agreement or settlement is reached during the mediation process, a record of settlement will be drafted by the mediator for both parties to sign.
7. If an agreement is not reached there are a couple of options including:
- giving the MBIE mediator an opportunity to make a written recommendation on how the problem should be solved. You can accept or reject this recommendation
- assuming mediation concludes, and the problem is not resolved, the legal process is likely to continue to the ERA and/or Employment Court
8. Note that it doesn’t cost your business to utilise the MBIE mediation service. There will be hidden cost to your business with time spent on any preparation and your actual attendance……..and if you reach a settlement at mediation that is likely to include a financial transaction.
In summary, don’t be intimidated by a request to attend mediation. Without endeavouring to disrespect the process of mediation, it is primarily a forum to reach a settlement (normally financial) between an employer and an employee/ex-employee. It effectively becomes a negotiation and therefore requires strength in order to protect the interests of your business, particularly if you believe in your employment processes.
If you have been invited to mediation and are feeling uneasy about the process, or you would like to checkout your employment processes to ensure they are robust - contact The HR Guy