Mediation

What is mediation?

Mediation is a voluntary, confidential, and safe way for employers and employees to talk about work-related problems with the help of an independent mediator.

Employment Mediation Services within the Ministry of Business, Innovation and Employment (MBIE) is a free mediation service for any employee or employer with an employment relationship problem.

Mediation is a semi-formal process. It’s not like going to court. You are not under oath, and you will not be cross-examined.

The mediator will help everyone to discuss their issues, understand each other’s point of view, and find a resolution that works for everyone. Any agreed solutions can be written down and made legally binding.  

You can bring people to support you during the mediation. That may be whānau, a support person, an advocate, lawyer, or a union representative. 

Mediations can involve different activities, for example, a meeting, video conferences or phone calls. If both parties agree, you can give the mediator the power to either make a written recommendation or binding decision.

Before applying for mediation

You should first try to raise your concerns directly with the other party.

If you want to go to mediation but you are not comfortable talking to your employer first (or anyone else in your organisation) because of the type of behaviour (bullying, discrimination or harassment) or the person you're complaining about, you will be able to apply directly for mediation.

If you decide you need mediation, you can use the free Employment Mediation Services.

Resolving issues yourselves

Things you should know about Employment Mediation Services

It’s voluntary

Participation in mediation is voluntary for all, but is often a helpful way to resolve employment relationship problems. Taking part in mediation can be seen as part of the good faith duties of an employment relationship.

If you choose not to take part, the other party might be able to take their complaint to the Employment Relations Authority (ERA), which could require you to attend mediation.

It's confidential

Everything discussed in mediation is kept private. All information provided for the purposes of mediation is confidential.

It’s impartial

The mediator does not take sides. They are neutral and there to help everyone involved to make their own decisions.

It’s free to use

Mediation services provided by MBIE are free. If you decide to hire a representative, there may be costs associated with their service. You should discuss any representation costs with your chosen representative.

Mediating with Employment Mediation Services

Our mediators come from a variety of different backgrounds and have extensive training and accreditation in resolving disputes. They understand employment law and have a clear picture of current trends in workplaces.

Our mediators will:

• encourage parties to identify the real issues
• help the parties explain those issues to each other
• identify points of agreement
• help people find a way through their problem that may not seem immediately apparent
• help parties to find a resolution
• provide an assessment of the risks if the problem is not resolved and proceeds further.

Our mediators are obliged to follow the Mediator Code of Ethics. Mediators are not on the side of either party. They are independent people committed to helping parties to resolve the problem. They must withdraw from any case if they think they might have a conflict of interest.

If you believe that your Employment Mediation Services mediator has acted unfairly, you can contact us to make a complaint.

mediationservice@mbie.govt.nz

Mediator code of ethics [PDF, 889 KB]

Contact us

Confidentiality and exceptions

Everything discussed in mediation is kept private. All information and documents provided for the purposes of mediation are confidential. Any terms of settlement reached in mediation are confidential.

This means that information may not be shared with anyone outside of the mediation process. Because of this, what happens in mediation cannot be used as evidence in the Employment Relations Authority or Employment Court.

Information that is shared during mediation but was created outside the mediation process is not confidential. Parties can, however, agree to waive the confidentiality.

Mediation carried out by Employment Mediation Services in the course of collective bargaining may not be confidential.

Some professions have exceptions to confidentiality requirements

Some professional bodies require a report of a dismissal or resignation, which may override the confidential nature of a record of settlement during mediation. 

For teachers, nurses and similar professionals there is a requirement that — in some circumstances — the employer notifies the appropriate professional body if an employee resigns or is dismissed. 

The Education and Training Act, for instance, makes such reports mandatory for teachers where misconduct or competence is being investigated at the time.

In these cases, reporting some agreed outcomes in a record of settlement may be required.

If this applies to you, you may consider addressing the need for notifications when negotiating a mediation settlement.

The mediation process

Who attends mediation?

You, the other party and the mediator are the only people who must attend mediation. You can bring people to support you if you want to, for example, whānau, a support person, an advocate, lawyer or union representative.

Generally, the mediator will meet with each party separately before coming together. You can let the mediator know about any needs you have for the mediation process.

How long does mediation take?

Mediations vary in length and approach. They may be in person, by video or by telephone. They usually last around 3 hours, but some can last all day or over several days. Your mediation confirmation letter will provide information about your appointment.

What does mediation look like?

At the beginning of the mediation, the mediator will:

• outline the process. You should ask any questions you have and let the mediator know if you are uncomfortable with anything
• allow you and the other party to give your side of the story. Make sure any documents or information are available to the mediator and other party
• allow you and the other party to describe the desired outcome. Be truthful about the outcome you really want. Clearly stating your goals will not work against you.

Working through the issues

The mediator will then help you to identify and discuss issues. The mediator will help both parties:

• understand their issues and interests more clearly. This could involve the mediator or parties asking questions of each other
• explore ways that the issue might be resolved
• discuss their potential risks, including what alternatives to resolving the issue at mediation might look like — for example, costs, injury to reputation, reduced employee productivity and further legal action
• manage expectations and emotions
• record areas of agreement
• focus attention on reaching a satisfactory outcome.

If the process becomes tense, the mediator will do their best to keep things going smoothly. It’s common to take a break and for the mediator to check with each party individually about how things are going for them.

Finding a resolution

As the discussion continues, potential options for resolution may be identified. The details of these may need to be negotiated.  At this point the parties may be separate and the mediator might share the offers between them.

You can agree to outcomes in mediation which might not be available in the Employment Relations Authority (ERA). If the matter goes to the ERA, the possible outcomes are limited to those provided by the law.

Some examples of agreements at mediation include:

• an agreement not to speak badly about each other after the mediation
• an apology
• the employer may provide a reference to the employee to help them get a new job
• reinstatement — this is where the employer gives the employer his or her job back
• financial compensation
• an agreement on how to improve the working relationship for the future.

If you reach an agreement, the mediator can record and finalise it in a record of settlement.

Records of settlement

How to behave in mediation

Mediation is based on the principles of being voluntary and confidential, empowering parties to make their own decisions, and being conducted by an impartial person.

The mediator’s primary role is to provide a safe environment for parties to address their issues, understand each other’s perspectives, and work towards resolution that meets the needs and interests of both parties.

If the mediator feels the mediation process is being undermined or any participant’s safety is at risk, the mediator can close the mediation.

Find out how you achieve respectful mediation by reading the terms of engagement.

Terms of engagement for mediation [PDF, 298 KB]

Representation at mediation

You have the choice of representing yourself at mediation or having somebody help you before and during a meeting.

Representing yourself

It is common for people to represent themselves at mediation. If you feel confident, you can arrange mediation and explain the facts yourself at a mediation meeting.

You do not need any technical knowledge, but you do need to be able to listen, respond and be open-minded about the options for resolving the problem.

The mediator will make sure that both parties are given the opportunity to reach an acceptable outcome. If you represent yourself, the mediator will take this into consideration when managing the mediation process.

To help you, the mediator may:

• suggest taking breaks to help you gather your thoughts
• explain legal concepts in plain English
• suggest that you ask for help if you are struggling to cope with the situation
• help you focus on the issues.

You can change your decision about having a representative at any stage in the process.

Using an advisor or representative

If you’re not sure about representing yourself, you can ask somebody for help. This can be a friend, whānau member, experienced community leader, union representative or a professional advisor like an employment advocate or a lawyer.

An advisor or representative can help you in preparing for the mediation and help:

• gather important facts and set out the law
• you decide what you are going to say at mediation
• identify the most appropriate solution
• you to express your views at the meeting. A mediator will also help you with this, but your advisor or representative will be solely focused on this task.

If you do use a professional representative, it is important to know what to expect from them. 

You may want to choose a representative who is a member of a professional organisation, for example, New Zealand Law Society (NZLS) or the Employment Law Institute of New Zealand (ELINZ). 

These professional organisations have codes of ethics or service standards, and they can support you if there is an issue with the service you received.

New Zealand Law Society(external link)

The Employment Law Institute of New Zealand(external link)

Cost of representation

Professional representation can be expensive. It’s important to consider this in advance because sometimes:

• the parties agree to share the costs of getting to mediation as part of a settlement reached
• costs do not form part of the settlement and the employer and employee meet their own costs
• an employer will agree to meet the employee’s costs.

If you hire an employment advocate or lawyer, you should be very clear in your brief to them about:

• the work you want them to do
• the objective you are trying to achieve
• how much you are prepared to pay
• how much it’s likely to cost (for mediation and afterwards if there is no resolution).

Bringing a support person

In addition to an advisor or representative, you may bring a support person along to a mediation meeting. A support person does not usually actively participate in the mediation meeting. Their role is to support you emotionally.

Staying involved

Even if you have representation, you need to stay involved in the process. It gives you a chance to voice your concerns and have them genuinely considered by the other party. Working through an issue and having a chance to say what you feel can be one of the most important parts of mediation.

Role of the mediator

It is important that you and your representative understand the role of the mediator, who is there to help both parties and manage the mediation process.

The mediator will:

• decide what process will most effectively deal with your problem
• decide what information will be brought into mediation
• often privately share their view with each party on what might be the legal, personal or other kinds of risks in taking their case further
• help the parties to stay focused on resolving the issue.

The mediator might talk to you without your representative being present if they think this is the best way to help you resolve your employment problem.

If an agreement is reached, the mediator will prepare a legally binding mediation settlement document. Your representative will help you check the settlement to make sure it reflects what you have agreed before you sign anything.

Further help

MBIE has published terms of engagement for representatives. If you have any concerns about the conduct of your representative at mediation, you can complain to the representative’s professional body.

Email MediationService@mbie.govt.nz if you believe any of the terms of engagement have not been upheld.

Remember, at the end of the mediation process it is always ‘your call’. The mediation session is your opportunity to talk about your employment problem and work on a resolution with the other party.

Terms of engagement for mediation [PDF, 298 KB]

Requesting mediation

How to request mediation

You can make a request online or by phone for mediation through Employment Mediation Services. 

We offer a range of ways to attend mediation:

• in person
• online 
• by telephone.

If you prefer a particular option, let us know in your application. You can find out more about online mediation below.

Please confirm offered dates and provide all the information needed to assess a case quickly. In particular:

• what happened, what you want to achieve from the mediation, whether the respondent has been informed and has agreed to come to mediation, and the current state of the relationship
• whether there are any safety issues or special requirements.

You only need to send in supporting information that is directly relevant to the issues.

If you need help applying for employment mediation online

Our employment mediation online user guide is a step-by-step user guide for requesting employment mediation online.

Requesting employment mediation online user guide [PDF, 588 KB]

Online mediation meeting

How to prepare for an online mediation meeting using Zoom video conference software.

How to access the mediation

When you are attending mediation online, you will receive a URL link to your Zoom mediation meeting in your confirmation letter from Employment Mediation Services. 

Use Zoom software or your web browser.

• If you are using Zoom software, you can simply click on the link and find yourself in the virtual waiting room – the mediator will welcome you to the mediation.
• If you choose to access Zoom using a web browser (for example, Chrome or Microsoft Edge) you will need to click on the link, enter the Zoom meeting password and this will take you to the virtual waiting room – the mediator will welcome you to the mediation.

Technical preparation before mediation

Choose your device

We recommend that you access the mediation using a desktop computer, laptop or tablet device. Your device will need a video camera function. We do not recommend using the Zoom smartphone app. However, if it is your preferred device, this is also acceptable. One person per screen works best. This way you will be able to view all the participants on one screen.

Charge up

Please remember to ensure that any device you are using is fully charged, or plugged in.

Check your Internet connection

The recommended minimum bandwidth for participating in a Zoom meeting is 1.5 Mbps. You can test your internet connection at Speedtest. 

Speedtest(external link) 

Download the software

We recommend you download the Zoom software as this provides the best experience for using Zoom.

Download Zoom(external link)

The alternative option is to join the meeting using a web browser such as Google Chrome or Microsoft Edge. You will need the Zoom meeting password. If you are having trouble joining the Zoom meeting using Internet Explorer, try using Google Chrome.

Test run

If you have not used Zoom before, we recommend that you give it a test run. The test run will help you check your video and audio settings, so you can be sure your camera, microphone, speakers, and headset (if you are using one) all work well.

Test run Zoom(external link)

If you check all these things beforehand, you can be sure everything is working as you need it to on the day. Note that all technology can glitch and create challenges, so no need to panic and remember to breathe.

Organise a private and quiet space

Employment mediation is a confidential process and people involved in mediation are not permitted to record any part of the proceedings. Please make sure that you have organised a private and quiet space to attend your mediation where you will not be overheard or interrupted.

Be mindful that your background will be visible to other parties. 

During mediation

When you log on to mediation, you will be placed in a virtual waiting room. Only the mediator can see who is in the waiting room. There may be a delay of up to 10 minutes while the mediator meets and briefs the other parties – please be patient.

The mediator will welcome you to the mediation and run through the process and protocols of virtual mediations, which include requesting that you:

• do not record the mediation – this function should be disabled. Mediation must not be recorded with any device
• mute your microphone when you are not speaking to ensure all parties can hear clearly
• position yourself in front of the camera so you can be clearly seen.

If you have any questions during the mediation, ask the mediator.

Pre-mediation preparation

Parties should come to mediation prepared to provide an opening statement in summary form, to listen to the other party, to be open-minded on how the matter could be resolved, and to ensure they have authority to resolve the matter.

Refer to our mediation workbook for more information.

Preparing for mediation [PDF, 739 KB]

The mediation meeting

Once we have received your request for mediation and supporting documentation, you and the other party will be contacted by our Employment Mediation Services team to find a suitable time and place for a mediation meeting to take place. This might be online, in person or by phone.

If you have any special needs at the mediation meeting, like an interpreter, it is important that you tell us about this when the mediation is being arranged. Let us know if you have any cultural needs, for example, wanting mediation to occur on a marae, and we will do our best to accommodate this.

It is important that your mediation meeting is held in a location in which both parties feel comfortable and where confidentiality can be maintained.

Venues may include:

• our MBIE mediation offices
• online, using a secure platform
• another venue such as a workplace
• marae or meeting site
• by telephone.

Do not stop trying to resolve your problem

If any new, relevant information becomes available before the mediation meeting, you should send this to the mediator — for example, the employment agreement, time and wage records, any letters, emails and text messages.

While you are waiting for mediation, we encourage you to keep trying to resolve the problem.

If you do come to an agreement before the meeting, you can record the agreement yourself. Once signed by the parties and an Employment Mediation Services mediator, this agreement will have the same status as an agreement reached in a mediation meeting.

The ‘Records of settlement’ section can help you record the agreement yourself.

Records of settlement

If you do reach agreement before the mediation, let Employment Mediation Services know so that the date they have set aside for you can be made available to others.

Preparing for mediation

Your representative or advocate should help you prepare for mediation by:

• talking with you before the mediation to identify the main problem
• helping you decide what would fix the problem for you
• telling you about the mediation process so that you know what to expect on the day.

It is particularly important that you understand that the mediation process is confidential. 

You must have the authority to enter into a settlement or agreement with the other party on the day of the mediation.

Your representative should talk to you before mediation about what might happen if your problem is not resolved. For example, you or the other party may choose to take the case further, which could mean an investigation meeting at the Employment Relations Authority or a hearing at the Employment Court.

Your representative may take care of the mediation application process for you. If this is the case, make sure that you let them know about any:

• health, safety and security concerns you have, for example, previous aggressive behaviour by any party involved in the mediation, or
• cultural considerations, like language or protocols to be observed.

Your representative must let you and the Employment Mediation Services know if they will not be at the mediation with you in person — for example, if they will be joining by telephone.

You should arrive at mediation with your representative 15 minutes before the start time.

During mediation

On the day of mediation, your professional representative should support you throughout the process and represent your best interests. They should:

• be with you at the mediation, unless previously arranged with you and the mediation service
• help you tell your story to the other party
• help you understand the different kinds of settlement options and negotiate solutions that best suit your needs
• make sure that you are in a good frame of mind to make decisions
• keep you involved throughout the process and help you to participate as much as you can
• listen carefully at all stages of mediation as people tell their stories, and remain open-minded so that they can help you decide your best course of action
• remain calm and focused on supporting you at all times.

Professional representatives should always act in good faith at mediation. This means they should always be courteous, and helpful and respectful of you, the mediator and others who attend the mediation, including other representatives.

Good faith

Mediation outcomes and records of settlement

Reaching an outcome in mediation

If an agreement is reached, this will be made final and binding. If not, the mediator can help you decide what to do next.

When an agreement is reached

Any agreement can be recorded by the mediator in a document called a ‘record of settlement’. Both parties and the mediator will sign the agreement, and each will be given a copy to take away. Sometimes this is done electronically and you will be sent an electronic copy.

It’s a good idea to get some advice before signing. A record of settlement is final. Once it is signed by the mediator you cannot go to the Employment Relations Authority (ERA) or the Employment Court if you do not like what you agreed to. Be clear about what you agree to and be sure it is acceptable to you.

Find out more about these agreements, including what to do if an agreement is not carried out.

Records of settlement 

When an agreement cannot be reached

Sometimes you will not achieve a resolution. If this happens, the mediator will help you to understand your options.

These might include continuing to work things through yourselves or with the ongoing assistance of the mediator. Arranging time for a further mediation is also an option.

Mediator recommendations and decisions

At any time, the 2 parties can agree for the mediator from MBIE’s Employment Mediation Services to make either a recommendation or a binding decision. 

This might help the problem to be resolved quickly and save time and costs. It is not intended to replace your right to reach an agreement among yourselves, or to have your employment problem decided by the ERA.

Agreeing that the mediator make a recommendation or decision must be done in writing. The mediator will be able to talk through this process with you.

If a recommendation is sought, the mediator will write a suggestion about how the problem might be solved. This will include a date when the recommendation becomes binding. 

Both parties will then consider and accept or reject the recommendation. If it is not rejected by either party before the specified date, the recommendation will automatically become full, final and enforceable like a record of settlement.

Notice of a rejection of a recommendation must be sent to MBIE by email, registered mail, or by another method agreed by the parties. 

If the recommendation is rejected, you may continue to work on the issue with or without mediation support.

Escalating unresolved issues