Mediation is the use of an independent person where a problem has emerged that employers and employees are unable to solve without assistance. Mediators are skilled at facilitating discussions between the parties and helping them to identify issues and potential solutions. The aim of mediation is for the parties to resolve the matter by agreement.
Mediation can help to:
- obtain information on problem solving
- identify the skills needed to deal with the problem
- be the trigger for both parties to recognise a problem exists.
Mediators are not advocates for either party. They are independent people committed to the process of problem resolution. The mediator’s role is to:
- help people find the best way to resolve their problems
- encourage parties to identify the real issues
- help the parties explain those issues to each other
- identify points of agreement between the two parties
- help people find a way through their problem that may not seem immediately apparent
- work with people to find answers that reflect good faith and common sense
- work with parties to seek a resolution that allows both parties to move on.
- provide early assistance to parties, without representatives being present
- mediate in a mediation meeting
- make recommendations
- make decisions (at the parties’ request)
- record settlements
- provide information to unions, to community groups and advisors, to employer organisations or employment law seminars.
More information on mediation and how to access to the service can be found on the Department’s website or through the Service Centre on 0800 20 90 20.
Each mediation has a different format and dynamic. It can involve a range of activities including email and telephone correspondence, meetings and workplace discussions. Mediation provides a confidential process where problems can be discussed, issues clarified and a conclusion reached that all those involved can accept.
A mediator may contact you and the other party to discuss the problem and see if there is a way of resolving it without attending a mediation meeting. At a mediation meeting people often represent themselves but they also can ask an advisor, friend or family member for assistance and support. An external advisor is often useful in bringing another perspective.
People who attend should be prepared to present the issues from their perspective, listen to the other party, and bring options for resolution. Information and comment exchanged during the meeting are confidential and “without prejudice” and cannot be used later in discussions about that or any other problem.
Employers and employees can agree on any matters which meet both their interests, as long as they are within the law.
At any point parties can agree to ask the mediator to make a recommendation in relation to the matter. Both parties must consent to this. Unless the recommendation is rejected by either or both parties, it becomes a full and final settlement. If the recommendation is rejected (and this must be done in writing within an agreed timeframe) mediation can continue.
Alternatively, the parties could ask the mediator to make a binding decision to resolve the matter.
When an agreement is reached the mediator will record the decision to be signed by all parties. The mediator will generally record when and how any agreements – such as reinstatement of an employee, payment of a settlement or a formal apology – are to take place. Once signed, the agreement becomes a full and final settlement and cannot be reopened by either party. A settlement should reflect the effect of the disputed event on the parties and will not necessarily involve money.
Parties to the mediation are responsible for ensuring that the agreement is followed through. If it is believed that the agreement has not been implemented after a reasonable period of time or has been breached, the mediator can be asked to follow up. If necessary, enforcement can be sought through the Employment Relations Authority or the Employment Court.
Failing to reach agreement
Sometimes parties are unable to reach agreement. If it looks like more information or assistance could lead to a settlement, the mediator can arrange an adjournment. If there is no possibility of agreement, the mediation ceases and the parties manage their remaining differences or to pursue the matter with the Employment Relations Authority or the Employment Court. These institutions can direct the parties to try mediation again if they believe it should be possible to reach agreement.