Despite recent glimmers of positivity in the economy, it remains vital to resolve workplace conflict in a timely manner, for the well-being of the parties and the organisation itself.
Senior Associate Lisa McWilliams-Smith outlines the key steps before, during, and after mediation.
The mediation process remains the primary problem-resolution mechanism under the Employment Relations Act.
Mediation has the unique twin benefits of confidentiality along with ‘off the record’ discussions (also called ‘without prejudice’ discussions).*
After conducting hundreds of mediations each year at MBIE, my observation is that it is a rare situation where parties do not gain a greater understanding of the situation, the other party, themselves and the business or organisation.
Mediation allows the parties to hit ‘pause’ on the dispute in a neutral context, then with a skilled facilitator, tailor an appropriate process, providing the best chance of a satisfactory outcome.
Preparation
Before coming to mediation, we think it is important to be clear about several things.
- Do you want to resolve this problem now?
- What is the main problem?
For example: ‘My manager is bullying me’, ‘my employee is taking too much sick leave and is always on TikTok when they do show up’, ‘two of my key staff members are constantly bickering’.
- What are the interests behind the problem, demands or position?
Common interests include productivity, good working conditions and saving costs.
Interests are the needs, hopes and desires behind the problem.
Problems and positions usually only have one solution, whereas there may be a raft of solutions to resolve the parties’ interests.
- Mediation is not Court. Mediation is a space to present your point of view and then work on crafting a solution that resolves the problem for both parties. Mediation is not a Wimbledon-like tennis match of legal argument across the table designed to impress the mediator.
- Have you had any ideas of a practical nature about a fix that you’d like to discuss with the mediator and the other party?
Note: it is counterproductive where one party is in the dark about why they have been invited to mediation. In these circumstances, the lack of clarity about the purpose for mediation may be seen as an ambush when the reason is tabled. In such circumstances, any resolution may be delayed and the relationship between the parties is very likely to be damaged.
At Mediation
- You will have likely worked with your mediator before mediation to identify key pieces of information to bring along. As Mediation is not Court and the mediator will not be examining evidence, generally, you will not need to bring tons of documentation.
- Make sure you have a clear timeframe to mediate. Constant phone calls might disrupt the flow of your thinking and solution-focused approach at mediation.
- Ensure you have the appropriate level of authority to make decisions around resolution or that you can easily reach someone at your organisation to approve or otherwise.
- Be prepared to listen and also to put your point of view forward. If you have a representative, lean into their experience about the key points to be made. It’s fine if your representative speaks for you – however, parties sometimes find it more meaningful to hear from the other directly, if this is possible.
- Take breaks for rest and hydration as needed.
- It is common for the parties to make excellent progress on the day of mediation but still need further information or authorisation to be able to complete an agreement. Try not to panic; your mediator will work with you and the other party over the next few days to finalise an agreement, ready to be signed and certified.
After Mediation
*Anything specifically and only discussed at mediation may not later be used at the Employment Relations Authority, the Employment Court or any other jurisdiction.
Our mediators are experienced in helping to resolve a broad range of disputes and conflicts in the workplace. For more information around our mediation services, please get in touch.
