The legal process for dealing with employment problems

Mediation

What is mediation?

Employment Relations Act 2000, ss 144, 145, 159, 159AA

For many employment issues the employment laws promote mediation as the main way of resolving problems. However, this doesn’t apply to disputes about workers’ minimum rights in areas such as pay, holidays/leave, rest/meal breaks, and breastfeeding facilities.

Mediation gives employees and employers a chance to talk about and solve their problems. A mediator helps the two sides discuss the problem, identify the issues, and try to come up with a solution that works. The mediator facilitates the discussion, but doesn’t decide what will happen unless the employer and employee ask them to.

Employment Relations Act 2000, s 147

Mediation can be a speedy, flexible and relatively inexpensive alternative to court proceedings. There’s no set process, but the aim is to identify common ground and reach an agreed settlement. The process may involve a meeting between the two sides and their representatives, or mediation may happen over the telephone or by email.

Employment Relations Act 2000, s 147

Note: If you and your employer have a problem and both of you agree you would like it resolved quickly, a mediator can offer a fast-track mediation option. A short timeframe will be set, and if the problem isn’t resolved within that set time the mediator will make a final and binding decision.

How do I get access to mediation?

Employment Relations Act 2000, s 146

A free mediation service is available through the Employment Relations section of the Ministry of Business, Innovation & Employment (MBIE). You or your employer can access this service by phoning MBIE’s contact centre on 0800 20 90 20.

Employment Relations Act 2000, ss 159, 188

In most cases, you and your employer must try to resolve your dispute through mediation before the Employment Relations Authority will intervene.

Employment Relations Act 2000, ss 154, 155

Note: Employees and employers can choose to use a private mediator or arbitrator. However, any agreement that’s reached may not be enforceable in the Employment Relations Authority or Employment Court unless it is later signed off by a mediator from MBIE.

What happens if the two sides reach an agreement?

Employment Relations Act 2000, ss 149, 151

If your dispute is resolved using the mediation service provided by the Ministry of Business, Innovation & Employment, you and your employer can ask the mediator to sign the settlement. The signed settlement will then be final and binding and either side will be able to enforce it by applying to the Employment Relations Authority (see “Taking your case to the Employment Relations Authority” in this section).

What happens if no agreement is reached?

Employment Relations Act 2000, ss 150, 151

If you and your employer can’t reach a mediated settlement, together you can ask the mediator to make a final and binding decision, or you can take the dispute to the Employment Relations Authority (see “Taking your case to the Employment Relations Authority” in this section).

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