Mediation

The concept of mediation is used broadly in the Employment Relations Act. Section 144 provides that ‘mediation services’ may include:

• providing general information about the rights and obligations of the parties
• providing information about the services that are available for resolving employment relationship problems
• providing a variety of services that can help the parties resolve those problems in various different ways.

The Act also emphasises the need to resolve problems promptly and effectively. This recognises that when problems drag on, the relationship can become too damaged to be salvaged.

Section 145 sets out the different ways mediation services can be provided. This section also reflects the Act’s broad definition of mediation, and the range of options indicates the importance the Act places on accessibility to mediation. Under section 145, mediation services can be provided by:

• telephone, facsimile, internet and email (This includes providing the parties with information, and providing mediation where practicable.)
• brochures, pamphlets, and booklets
• mediation specialists, who either advise the parties or assist them to a mediated resolution of their problem.

In line with the Act’s informal, practical approach to resolving problems, parties do not have to initiate mediation in a defined way. All they need to do is make a request for mediation assistance to a Department of Labour office, and they will be assigned to a mediator. The mediator will do whatever they think is best for the needs of the parties and the nature of the problem. The Act’s emphasis is on informality and reaching quick, practical solutions (see sections 146 and 147).

If the dispute concerns applying a term within a collective employment agreement, the party who is taking the dispute must ensure that all employer and union parties to the agreement are notified (section 129).

Any party that is dissatisfied with the outcome of mediation can take the matter to the Employment Relations Authority and ultimately to the Employment Court . However, any statements or concessions made by either of the parties during the mediation remain confidential to that process and cannot be used as evidence before either of those bodies (section 148).

If a settlement between the parties is reached, it becomes enforceable once a mediator has signed it. The mediator is under a legal obligation to:

• explain to the parties that the agreement will become binding once signed
• be satisfied that the parties understand this and still accept the settlement
• explain to the parties that, once signed, the settlement cannot be questioned by either the Employment Relations Authority or the Employment Court .

This last point is very important. It means that once a mediator has signed your agreement, you can not revisit it later. The matter is finished. You can access the Authority or the Court only if you do not reach an agreement, or if that agreement has not been endorsed by a mediator.

There are no appeals from a mediated outcome.