EMPLOYMENT LAW SARAH CATES
Sarah Cates, Senior Associate at Cullen – The Employment Law Firm, takes a look at how mediation can be used to definite advantage when it comes to matters arising during employment.
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ediation for employment matters is often perceived as a mandated step in the litigation process, or simply a means to discuss a settlement agreement. However, this view ignores the value that mediation can bring to an employment relationship and the full range of options that parties have in respect to how they mediate a dispute.
Conflicts between colleagues
Mediation is commonplace between employers and employees, even when the conflict exists between colleagues. However, mediation can also help in resolving conflict between colleagues, if used early enough.
Mediation can also help in resolving conflict between colleagues, if used early enough. Understanding why these conflicts arise informs how they can be 24
HUMAN RESOURCES
SUMMER 2019
resolved. Causes of conflicts between colleagues can include communication and personality differences, poor performance, disputes over approaches and authority, lack of cooperation, competition for limited resources, differing access to information, systems or structures, or divergent values and interests. Because mediation is a voluntary process, both employees must agree to attend mediation. Outcomes of such mediations could include commitments from the employees to make changes to the way they work or communicate with each other. Often a representative of the employer participates in some of the mediation process. This is particularly important if systems or structures need to be changed.
Because mediation is a voluntary process, both employees must agree to attend mediation. Private mediators
By default, many employers use the Ministry of Business, Innovation and Employment’s (MBIE’s) publicly funded Mediation Services. However, parties can always elect to engage a private mediator.
Private mediation allows for increased flexibility. Engaging a private mediator will enable you to choose the mediator based on the desired skill set, style and experience for the dispute. You can also choose the date, time, duration and location of the mediation. In a private mediation, it is possible to incorporate organisational culture or tikanga Māori into the process. Private mediators generally provide a more comprehensive service, including intake interviewing and pre-mediation conferencing, and ‘after-care’ or follow up. Private mediators are generally available at short notice, which can save operational costs and avoid escalation of the problem or entrenchment of positions. An agreement entered into during a private mediation is usually sent to an MBIE mediator to be certified under section 149 of the Employment Relations Act 2000.
Lawyers
The importance of a lawyer or other representative at mediation will depend on the circumstances. While engaging a lawyer increases costs, it can also mean better and cheaper outcomes for the employer. If a dispute not resolved at mediation
