SPECIAL FEATURE: JOBS YOU’VE NEVER HEARD OF
It’s not all about the money The adage “find a job you love and you’ll never work a day in your life” could well apply to tenancy mediators. They say helping people is their motivation as they mediate tenancy disputes that range across all the country’s cultural, social, and economic spectrums. KATHY OMBLER speaks to three of them.
When a landlord or tenant applies to the Tenancy Tribunal to resolve a dispute, most cases are referred first to mediation. In statutory terms, the legislation that applies to tenancy mediation is the Residential Tenancies Act 1986. The mediators also provide mediation services in relation to the Unit Titles Act 2010, Weathertight Homes Resolution Services Act 2006, and the Canterbury Earthquakes Insurance Tribunal Act 2019. While private practice mediators can work in other fields, for example, employment disputes, only government mediators can work in tenancy mediation. There are 24 tenancy mediators around the country, and they all work under the umbrella of MBIE. Public Sector spoke with three: Timarubased Michael Johnstone, Auckland-based Niall Parkes, and Hamilton-based Gaye Cox, who between them have more than 70 years’ experience in the role. Getting away from court “Our job is quite clear. It is to assist people to come to a fair and amicable resolution of their dispute without going to the Tenancy Tribunal,” says Parkes.
trade-offs and a solution that suits both parties. “It seems to work. More than 90 percent of cases are resolved by mediation.” Of course, there’s more to it than simply finding trade-offs, as Cox points out. “All resolutions are legally binding and can be challenged in court, so we need a thorough understanding of the legislation we are practising under. As a government mediator, we have to be careful parties don’t agree to anything that’s not lawful.” This also means keeping up with changing legislation, she adds. “We constantly have to adapt. For example, there were the Healthy Homes Standards introduced last year, the temporary rent freeze during COVID-19, and legislation changes that are being implemented next year around rent increases, changes to fixed-term tenancies, and giving notice.” While larger offices have face-to-face meeting facilities, most mediation is done by phone. Cox says this calls for skills in reading the tones of voice. Doing things by phone can also be helpful when parties would prefer not to meet. “When we first started mediation, we were in a room together. We could all see the body language, and sometimes that was counterproductive,” explains Johnstone. “On the phone, you don’t have that. People have to listen to each other, and they can’t talk over others or they won’t hear what is being said.” It can get complicated though, he adds. “Recently I was involved with two parties and a Mandarin interpreter. Both parties spoke some English, so they were listening to everything twice, in English then Mandarin. It actually gave them time to understand better and respond.”
Gaye Cox “Essentially it’s getting parties to find an agreement by allowing them a chance to come to a resolution that fits them together rather than fitting something onto them,” adds Johnstone. “Going to a court, or tribunal, means following the facts. There is no variation, whereas when parties are in dispute, those variations and differences can be important. The advantage of a mediator is that we can elicit those areas of importance and find 20 PUBLIC SECTOR December 2020
Parkes adds that multiple parties are sometimes involved, for example, in weathertight-related mediation, which is typically about leaky homes. “These can include the local authority, tradesmen who might have some liability, and all their lawyers, technical experts, and insurers.” We have been mediating for people with weathertight-housing issues for more than 10 years, says Cox. “People might have had a $500,000 new home with rotten piles or plaster board and with those living in it getting sick. However, legislation around this was introduced in 2006, and nowadays,
Niall Parkes we have only a few weathertight cases coming in.” Ongoing Canterbury-earthquake-related disputes come with similarities, she adds. “At stake is the person’s house, their home, their kingdom, and now it’s damaged, draughty, and cold. If they lose their home, they can lose everything they have worked for. Some are angry or exhausted, and they get ill or depressed. When they finally get to us for mediation, after 10 years of struggle, they are so relieved. It is just wonderful to be able to help.” And therein lies the essence of why these mediators stay so long in their jobs. Making a difference “It’s being able to make a difference in people’s lives. We bounce off that. It gives us the energy to go on,” says Cox, who discovered an interest in mediation when studying for a business diploma. “Sometimes when I mediate, a party can be so emotional or depressed they just can’t make a decision. If we are able to help these people find a way forward then you ‘hear’ the relief and the smile – and yes you can ‘hear’ that on the phone,” she adds. Johnstone says he got into mediation “by accident”. He needed to move to Dunedin just as the Housing Corporation was establishing a Tenancy Bond Division, which included an opportunity for mediation work. “That was in 1986 when there was very little mediation in New Zealand.” He says there’s not much turnover in the job because it’s fascinating work. “While you do the same thing every day, different people
