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What happens at mediation

These notes are taken extensively from the Ministry of Business, Innovation and Employment (MBIE) information about mediation, see www.mbie.govt.nz

 

What is mediation?

Mediation is a meeting where an independent person, a mediator, helps you and the other party talk through the problem you have, and tries to find a solution you are both happy with. The mediator does not speak for you, take sides or tell you what to do.

Who goes to a mediation?

You, and your employer/employee that you have the problem with.

You may also take a support person/people if you wish.  The other side may have support people too.

Each side may also be represented by an advocate.

Can I be legally represented?

Yes.  Any person who has an employment dispute may be legally represented at mediation.

What do I have to do before the mediation?

Gather together any important papers like your employment agreement, time and wage records, letters or emails. Go over what you want to say at the mediation, and write it down so you do not forget anything important.

What do I bring to mediation?

Any papers that are important, like the employment agreement, time and wage records, letters etc.

Is it like a court?

No. Mediation is an informal meeting where people sit round a table to talk. The legal issues are important, but will often be only one part of what is talked about.

How does the mediation work?

The mediator chairs the meeting. Each person has a chance to speak and to be listened to, to ask questions and state their point of view. The mediator makes sure people understand each other, and helps them to work out a solution that they can agree on.

What does confidentiality mean?

Everyone who takes part in the mediation is bound by confidentiality. This means they cannot tell anyone outside the room (except as may be agreed on) what has been said in the meeting, or what agreement has been reached.

How to get the most out of mediation

Come prepared to listen to the other person’s point of view and accept that that is how they see the world, even if you do not agree with what they say.

Be prepared to acknowledge anything that you might have done better.

Be honest and open about what has happened.

Put yourself in the other person’s shoes.

Be prepared to acknowledge mistakes and be prepared to give a little to get a settlement.

A little bit of recognition, or sometimes an apology, goes a long way.

How long will it take?

A lot of mediations take three or four hours.  Some last all day.

What will happen at the mediation?

The mediator will talk to each side privately.  When they do this, they will not tell the other side what you have said, unless you ask them to.

You will also have a joint meeting with the other side.  The mediator will tell you what to expect and make sure that you understand what is happening.

If you may want to take a break during the meeting, this is okay.

After you have talked things through, the mediator will help you to work out what to do to fix it. However, the mediator will not tell you what to do or make the decision for you.

What will the mediator do?

The mediator:

-        chairs the meeting and makes sure it runs smoothly

-        makes sure that each side understands the other’s point of view

-        focuses the meeting

-        helps people come to an agreement on what to do

-        writes up the agreement as a binding legal settlement, if both sides wish

Who does the talking at mediation?

You, or your representative; the other side; and the mediator. Support people normally do not talk.

What happens if I reach an agreement?

In most cases the mediator writes up your agreement as a Record of Settlement.  Most Records of Settlement are legally binding, and enforceable through the courts.

Sometimes however, an agreement does not need to be legally binding, and is simply a record of what you have agreed to.

You are given a copy to take away with you.

What happens if I change my mind after mediation?

There is no going back to renegotiate. It’s a ‘done deal’.

Once the agreement is signed, you cannot then go to court if you decide you no longer like what you agreed to.

So be clear about what you are agreeing to, and make sure it is what you want.

What happens if the agreement is not kept to?

If the agreement is for payment of some kind, and this is not done, then the person who wishes to enforce the agreement may apply to the court for enforcement of the order.

What happens if we can’t reach an agreement?

If you cannot come to an agreement in mediation, then the person who brought the application may file in the Employment Relations Authority.


For Legal and Strategic Advice on Mediation Pick Up The Phone and Talk to Workplace Law

I can offer free initial advice during the day, and after hours, to help you make sense of your situation.

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mrobins@workplacelaw.co.nz