Employment Mediation

MBIE employment mediation - how it works and how to prepare

MBIE Mediation Services facilitate mediation where parties to an employment relationship problem sit down with their representatives and an experienced mediator. Each party is given an opportunity to speak uninterrupted and to set out their case. Following challenges and questions, the mediator helps parties move toward resolution, including private discussions and risk analysis with each party separately.

In the employment law jurisdiction, the ERA and the Employment Court can direct parties to use mediation. In practice, most cases are expected to attempt mediation before progressing to a formal ERA investigation meeting, unless there are exceptional circumstances.

Why mediation matters

• If you can settle, it is settled quickly and confidentially, saving further time and costs.
• You control the terms. Mediation can achieve flexible terms like references, reimbursement of expenses, apologies, and practical arrangements that the ERA may not order.
• It is often the last "human" forum before the dispute turns into formal witness statements and a hearing timetable.
• If you do not settle, mediation is still a valuable testing ground that usually improves preparation for an ERA investigation meeting.

The mediation process in a nutshell

• Mediation is confidential.
• The parties have control over the outcome.
• Every participant has an opportunity to speak.
• The claimant (often the employee) usually presents first, uninterrupted.
• The respondent (often the employer) then presents their reply, uninterrupted.
• The mediator facilitates resolution and will usually speak to parties privately (caucus).
• The mediator may provide separate risk analysis to each party.
• Parties can agree to disagree and move on to the next step if not resolved.

What really happens at mediation

Mediation is not a courtroom. It is a negotiation forum, and behaviour can be imperfect. Parties can articleure, make faces, or make unhelpful comments. Good preparation and calm delivery matters.

Mediators will often encourage resolution. You may hear "reality check" statements about delay, publicity, or costs. Those statements are not a determination of the merits. They are usually intended to move parties toward settlement. For example, you may hear comments about how long it can take to reach an ERA investigation meeting, and that is used to encourage settlement momentum.

Preparation checklist (this improves outcomes)

• Your timeline - dates, key events, meetings, letters, warnings, and what was said.
• Your documents - agreement, policies, emails, texts, meeting notes, rosters, wage records, medical material (if relevant).
• Your losses - what you have actually lost (wages, benefits) and what you are seeking to resolve the problem.
• Your mitigation - job search efforts (applications, interviews) if lost wages is in play.
• Your settlement terms - money is one term. Think also: reference, certificate of service, resignation wording, return of property, confidentiality, non-disparagement, and timing of payment.

A mediation opening statement (highly recommended)

Preparing an opening statement helps tell the other party and the mediator your story and what you are seeking for resolution. It can also become a strong foundation for an ERA witness statement if the matter does not settle.

Core ingredients:

• A brief background of the employment.
• What happened, with dates, in chronological order.
• Who, what, when, where (and how/why if needed).
• How the employer's actions affected you.
• What losses you incurred (for example, loss of wages) and what you want to resolve it.
• If relevant, what efforts you took to find alternative employment.

Settlement at mediation - record of settlement and finality

If the matter resolves, it is normally recorded in a "record of settlement" under s 149 of the Employment Relations Act 2000. Mediators can only sign a recorded settlement after the parties affirm the request for signing, and after the mediator explains that settlement is final, binding, and enforceable.

Before you sign - common terms to check

• Payment - amount, due date, tax treatment, and what happens if payment is late.
• What is being settled - confirm the scope (all claims, known/unknown, past/future), and any carve-outs.
• Reference / certificate of service - wording matters. Specify what will be said and who can give it.
• Confidentiality and non-disparagement - understand the restrictions and who can be told (partner, accountant, adviser).
• Resignation or termination wording - settlement often documents a clean exit narrative.
• Restraint of trade - restraints in a record of settlement can be more enforceable than restraints in an employment agreement. If an employer wants a restraint, it should be negotiated and paid for.

Signing the settlement - practical options

Settlements are often signed remotely. Common methods include printing and scanning, printing and photographing pages, or signing a PDF on a phone (for example iPhone PDF signing, or using an Android signing app).