Contemporary Mediation Practice

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Breaking down the barriers: Cross Agency Co-Mediation

Introduction

Two public sector agencies have joined in a ground-breaking initiative to allow them to mediate issues together.

A number of matters fall within the jurisdiction of the Employment Relations Act 2000 (ERA) and the Human Rights Act 1993 (HRA). Both laws offer mediation in the first instance as a way of resolving disputes. Mediation has traditionally been provided separately by two different public sector agencies – the Department of Labour (the Department) and the Human Rights Commission (the Commission). The development of an inter-agency co-mediation process provides an effective practical, flexible and efficient response to some of these matters.

In this paper, we track the journey of this initiative. We outline the initial resistance, explain how barriers were overcome, provide examples of the tools we have developed to protect both agencies and the parties to the process, and demonstrate the challenges and benefits of working together.

Key focus of the Employment Relations Act 2000 and the Human Rights Act 1993

The ERA is the main law that sets out the rules that govern parties in an employment relationship. If a party believes they have been treated unfairly in the employment relationship, they may raise an employment relationship problem, dispute or personal grievance under the ERA and seek redress.

The HRA protects New Zealanders from unlawful discrimination in a number of areas of life. An employee who believes they have been discriminated against in employment can choose to have the complaint resolved under either the ERA or the HRA, but not both. However, that choice is only required to be made should mediation fail to reach a resolution and there is a desire to progress the matter further through litigation.

How do the agencies work?

Under the ERA, a claim of discrimination would normally be raised as a personal grievance by an employee against their employer. Mediation is the primary problem-solving mechanism under the ERA, and therefore, one or both parties would seek mediation services provided by the Department of Labour.

Under the HRA, a complaint is made to the Human Rights Commission, which progresses it. Dispute resolution (of which mediation is a key process) is also prescribed in the first instance.

The main practical difference is that, at the Department, once a request for mediation assistance is received, a face-to-face mediation is set up within one to six weeks, depending on the parties’ availability. There is limited contact between the parties and the mediator prior to the mediation event. At the Commission, mediators are much more involved in taking the complaint and often resolve it in alternative ways to face-to-face mediation, for example, by shuttle mediation on the phone. It is not uncommon for a face-to-face mediation to come at the end of such other alternative processes and after some time has lapsed.

The genesis of the initiative

The Commission noticed that they were receiving complaints where complainants (and lawyers) had separated out components of their complaints. For example, a complainant might be unhappy with a disciplinary process and would raise a personal grievance under the ERA. However, the complainant would deliberately separate out sexual harassment issues and raise those under the HRA. There are a range of reasons why a person might separate out the claim. There is a common perception, particularly among lawyers, that the Department’s mediation is best equipped to deal with employment matters and the Commission is best equipped to deal with discrimination matters, so expert assistance is sought specific to the component of the claim. Sometimes, parties will make claims in two different jurisdictions as part of a strategy to encourage the other party to settle.

The problem with this approach is that often facts and perceptions of the separate claims overlap. Because of this, the parties may not be able to resolve all or any of the matters until all matters have been mediated. This may require two separate mediations (one with the Commission and one with the Department). Having to participate in two mediations is resource-intensive and slow, and defeats the objects of both Acts to provide low-level, flexible and informal dispute resolution processes.

In other situations, it became apparent that, even if the complaint hadn’t been separated out (and parties had approached both agencies), there could be value in dealing with all the issues together so that parties were fully informed through one process. The Commission approached the Department to consider whether co-mediating between the two agencies in certain matters was a viable option.

In favour of co-mediation

Both Acts support flexible, efficient, effective dispute resolution processes. Offering the parties a single mediation process that meets their needs supports the intention of both Acts.
Both Acts support the principle that disputes are more likely to be successfully resolved if done so by the parties themselves (which is underpinned by the subjective nature of the mediation process).
Parties would benefit from having expert mediators from each jurisdiction; they would get more information in order to “reality check” their options. Parties should then make better informed decisions and ultimately receive a better service.
There are experienced and capable mediators in both agencies who could easily adapt to a co-mediation approach.

Complications to consider

Although the two different jurisdictions are reasonably complementary, there are different provisions and powers that govern mediation under the respective Acts. For example, the ERA provides for mediator sign-off and decisions, and the HRA does not.
Neither law contemplates co-mediation with another agency so there are potential issues around jurisdiction and enforcement of any mediated agreement.
On a practical level, both agencies take quite a different approach to mediation. There would need to be some common understanding.
Each mediator has an individual style of mediating, and there are potential complications with co-mediation. Matching mediators with complementary styles would need to be considered for co-mediation to be successful.
There would be administrative considerations.

What did we do?

In principle, the Department and the Commission were supportive of an inter-agency co-mediation approach. It was important to check that there were no statutory bars to co-mediation. Both Acts have provisions that refer to the choice of procedure. It seems clear from recent amendments that the choice of procedure happens at the “proceedings level”, which means the Human Rights Review Tribunal or the Employment Relations Authority. The ERA makes it clear that, if an application to the Authority for resolution of the grievance is made, the applicant may not exercise or continue to exercise any rights in relation to the subject matter of the grievance under the HRA.

The provisions of each Act refer to each other and must be read together. It would therefore be inconsistent to choose a decision-making body level in one forum and at the mediation level in another. The objects of each Act, in essence, provide for flexible dispute resolution processes, early intervention and party involvement in resolution. It is conceptually inconsistent for the law to require the election of a dispute resolution forum as, by their nature, these forums enable wide ranging discussion. It would make more sense for such an election to be at a proceedings level where the issues are required to be narrowed into specific claims.

When an appropriate case presented, the agencies decided to trial co-mediation. This case involved a senior executive for a large private company. She had three outstanding and different claims. One involved sexual discrimination and was filed with the HRA. The other two were under the ERA and related to how she was treated in her employment and the subsequent end of the employment relationship. Although they were different claims, the facts, issues and perceptions clearly overlapped. All parties and their legal representatives in principle immediately saw the benefits of inter-agency co-mediation. However, preparation work was needed to make sure that everyone involved was comfortable with the approach.

To deal with any complications around the two jurisdictions, we drafted a mediation agreement that all parties reviewed and signed prior to the mediation starting. The mediation agreement covered issues such as jurisdiction, process agreements and enforcement of any settlement agreement.

It was decided that this first case would need to be handled by senior experienced mediators from both jurisdictions. It made sense that Cara Takitimu (DOL National Mediation Practice Leader) and Susan Freeman-Greene (HRC Chief Mediator) would co-mediate, as both mediators had successfully worked together before. Susan Freeman-Greene had previously worked in the ERA jurisdiction so the issues around co-mediation weren’t significant, although we identified that it could be an issue for future cases.

How did it go?

Although there were some additional considerations in the setting up of the mediation, both agencies were enthusiastic to trial this new initiative, so things were fairly easy to work through. The actual logistical setting up of the mediation was facilitated by the Commission. The venue for the mediation was provided by the Department.

Most importantly, the co-mediation was a success. All three claims were resolved, the case was settled and the parties were happy with the service. In order for the parties to reach resolution, all matters had to be resolved. The parties were grateful to have a forum in which all claims could be dealt with together and they could take advantage of having expert assistance from mediators from each jurisdiction. The settlement was drawn up and signed under the ERA for ease of enforcement.

What happened after the co-mediation?

As the mediation was a success, the agencies were keen to progress the initiative. There was a need to broaden beyond the “one-off”, and a case presented for a wider systematic approach. Both agencies got buy-in from their respective leaders and reported the success to their ministers who were enthusiastic.

Protocols were drafted covering:

rationale
purpose of protocols
how matters for co-mediation are selected.

To avoid any doubt around potential issues in regards to dual jurisdiction, an agreement to mediate was drafted covering

confidentiality
ERA mediators’ ability to make binding decisions
enforcement
recording agreements
how mediators should prepare.

These protocols and agreement to mediate were put out for consultation within the agencies and have now been finalised by both legal teams.

Following the success of the first co-mediation, another case that fitted the criteria was co-mediated by two different mediators who had not previously worked together. They followed the protocols and the case was settled.

Next steps

There is a need for education and promotion work with users and particularly legal representatives. There are still misconceptions about the stage at which a party must elect choice of procedure. Some believe that this is at the mediation stage. However, we are confident that it is only after mediation has failed to resolve matters that an election must be made. Some general publicity and a launch may assist in resolving misconceptions. We believe there is a lot of enthusiasm for this inter-agency co-mediation approach.

Each potential case requires identification, negotiation and a reasonable amount of planning. This needs to be done with parties/legal representatives and mediators. However, this can be done quickly if everyone is willing.

Approval is needed for each case.

Co-mediation training for mediators interested in doing this work is required. Co-mediation adds its own challenges, and it is important that the mediators have complementary and inclusive styles.

Conclusion

The development of an inter-agency co-mediation process has created an effective, practical, flexible and efficient response to cases that involve matters that fall within the jurisdiction of both the Employment Relations Act 2000 and the Human Rights Act 1993. Both laws offer mediation in the first instance as a way of resolving such matters. It is traditionally provided separately by two different state sector agencies – the Department of Labour and the Human Rights Commission. However, this initiative has allowed the two agencies to work together and, in doing so, has enhanced both agencies and more importantly the service to clients.

The first co-mediation following the initiative was a success. The initiative is just the beginning of collaboration between the two agencies, and there is still more work to be done to promote the service externally. Co-mediation has the potential to transform the complaints processes in a constructive and effective way.