Visit from Mediation Services

The Employment Law Committee was recently addressed by representatives of the Employment Mediation Services at the Ministry of Business, Innovation and Employment, including Judy Dell (Principal Mediator based in Wellington), Brandon Brown (Mediator), Kimberly Eccles (Mediator) and Puni Leota (Dispute Resolution Manager).

The Committee had suggested a number of topics for discussion. Ms Dell spoke to each in turn.

Early intervention service

The goal of early intervention mediation is to maintain and strengthen employment relationships. For instance, the service is often used to address issues of poor communication, team work or personality differences.

The style and focus of the early intervention service is designed to encourage parties to understand each other, acknowledge what has happened and look for ways to improve outcomes in the future.

To this end, mediators will assist parties to agree on guidelines for future behaviour, including communication protocols and/or problem resolution procedures. Acknowledgements and apologies may be given and the parties can agree on particular actions to be taken.

The guidelines for future behaviour are recorded in a Memorandum of Understanding (as opposed to a Record of Settlement) and the mediator will build in a review period after the mediation.

The current timeframe for parties wishing to access early mediation in Auckland is three to four weeks. The mediator can attend the workplace if the parties prefer this approach.

Legal costs

The mediators present at the Committee meeting agreed that the issue of legal costs is often a barrier to settlement.

There appears to be an expectation that employers will pay the legal costs incurred by individual parties, although this is always a matter for negotiation.

The issue is a particular barrier where the level of costs outweighs the value of the settlement.

Fall-overs

The mediators said that they request that parties notify them as soon as possible if mediation is no longer required. Failure to do so causes scheduling difficulties and potential delays for those wishing to access the service.

Mediation Services is considering the possibility in the future of offering standby slots in an effort to utilise the time available as a result of fallovers. If the parties indicate that they would be ready to attend mediation at short notice, then this may be an option.

Mediation Services is developing a new case management system called “Project Resolve”. Project Resolve is an online processing system that will help resolve people’s disputes more easily, quickly and with greater consistency. It is hoped that a new case management system for resolving employment disputes more efficiently and effectively will be implemented from August to September 2016.

Recommendations and decisions

The Employment Relations Act 2000 enables the parties to an employment relationship problem to agree in writing to confer power on a mediator to make a recommendation in relation to the matters in issue. The written agreement between the parties must also specify the date on which the recommendation will become binding, unless the recommendation is rejected.

Alternatively, the parties may give the mediator power to decide the matters in issue. In this event, the mediator’s decision is final and binding and cannot be brought before the Authority or the Court except for enforcement purposes.

Recommendations and decisions are rare. In the 12 month period commencing 1 July 2014, there were 15 recommendations nationwide and no decisions issued. It may be that parties are reluctant to give mediators the power to issue decisions where the full facts are not yet to hand. If the parties are aware of the option for a recommendation where the gap between their respective offers is small, they may be more inclined to compromise for the sake of reaching a settlement.

Mediator preparation

Mediators appreciate parties providing them with relevant information prior to the mediation. At the least, this should include any personal grievance and response letters. It is also useful to give an estimate of the required timeframe.

The mediator will then familiarise him or herself with the key issues and undertake any necessary research. However, mediators are careful to keep an open mind and to not prejudge the situation. In any event, fresh issues often arise on the day which the mediator will be quick to assess.

Mediators will not share any information without the disclosing party’s consent.

In order to ensure mediations run efficiently, it is prudent to ensure that not only the mediator, but also the other party, are privy to any key documents being relied on in support of a particular position.

The new case management system may allow both parties to access all of the information online which would facilitate this.

Standardised processes

There is no standard process that mediators are required to follow.

Mediation Services achieves a 75-80% settlement rate, although Ms Dell emphasised that the focus is on meeting the particular needs of the parties and the dispute and not on achieving a settlement at all costs.

Mediation Services’ website will be updated later this year. Ms Dell will consider whether to add the competencies and criteria against which mediators are assessed.

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