Mediation can get to heart of employment problems

1 Aug 19

Column written by Dunedin Partner John Farrow, published in the business section of the Otago Daily Times on Thursday 1 August.

Last Friday, after 44 years as a mediator with MBIE, Walter Grills retired. Walter has variously been described as an icon and a legend. Before the inception of the Employment Relations Authority, Walter was also a member of the Employment Tribunal. Under that regime he both mediated and decided cases. As a mediator he was involved in some of the most significant disputes this country has experienced over a range of industries. The then Minister of Labour, Margaret Wilson, welcomed his report on the South Island ports dispute. He was in the thick of a number of freezing worker disputes. Helen Clark personally called on him to resolve industrial disputes during her time as prime minister. His experience and insight into human nature will be sorely missed.

The Employment Relations Act provides for mediation services to support all employment relationships. Mediation services may include providing general information about employment rights and obligations; providing services that assist the smooth conduct of employment relationships; providing other services that assist persons to resolve their employment relationship problems and providing services that assist persons to resolve any problem with the fixing of new terms and conditions of employment. In order to promote fast and effective resolutions, mediation services can be provided by telephone, internet or email. The services are also provided by specialists in a manner and at a time and place most likely to resolve the problem in question.

Traditionally, mediation services are accessed by contacting an MBIE office and requesting assistance. The service is free of charge. The mediator providing the service is able to decide what procedures to follow or what techniques to engage to resolve the problem or dispute promptly and effectively. A mediator can receive any information they think fit, whether or not it would be admissible in judicial proceedings. Mediators are entitled to address parties without representatives being present, and can express their views on the substance and the process or the position a party has adopted about the employment relationship problem.

Mediators engaged by MBIE are not only trained in effective mediation but are also expected to be familiar with employment legislation and current case law. All matters discussed at mediation and documents prepared for the purposes of mediation attract confidentiality. Mediators are protected from being required to give evidence in proceedings about the mediation services provided or anything that comes to the knowledge of the mediator in the course of providing those services. Nothing in the Official Information Act applies to any information disclosed or made in the course of the provision of mediation services.

However, there are certain exceptions when mediation services are provided for the purposes of agreeing on new collective terms and conditions of employment. Often disputes are resolved and settled by the parties without the need for an actual mediation. In these circumstances mediators can sign off on any agreement reached. A mediator’s sign-off ensures that the terms of the agreement are final and binding on and enforceable by the parties and that the terms cannot be cancelled pursuant to the Contract in Commercial Law Act 2017. Agreements signed by a mediator are immediately enforceable in the Employment Relations Authority.Persons who breach an agreed term of settlement (which has been signed off by a mediator) become liable for a penalty imposed by the Employment Relations Authority. Parties can also agree that a mediator may make a written recommendation in relation to the matters in dispute. That recommendation will become final unless the parties do not accept the recommendation.

If the recommendation is accepted then neither party can bring the recommendation before the Employment Relations Authority of the Employment Court, except for enforcement purposes. In addition, parties can also agree that a mediator actually decide the matter at issue. In such circumstances the decision becomes final and binding and except for enforcement purposes cannot be brought before the Authority or the Court. Where proceedings are brought before the Employment Relations Authority it is the duty of the authority to consider mediation and indeed direct that mediation or further mediation be used before the authority investigates the matter.

There are exceptions if the authority considers that mediation will not contribute constructively to resolving the matter; will not be in the public interest; will undermine the urgent or interim nature of the proceedings or will be otherwise impracticable or inappropriate in the circumstances. Where the authority directs parties to mediation, they must comply with that direction and attempt in good faith to reach agreement.

Both employers and employees are fortunate to be able to call on mediators experienced in employment law to assist with employment relationship problems.The service provided is generally timely and efficient. Mediation services often result in settlement of personal grievances; however, the assistance that can be provided is wide-ranging and includes resolution of workplace disputes, interpretation of employment agreements and assistance in terms of collective bargaining. Timely interventionist mediation services are invaluable. They can resolve disputes at an early stage and prevent ongoing disruption to the workplace. They prevent costly and damaging litigation. Ultimately, they facilitate an opportunity for parties to resolve their own disputes.

The employment relationship is a human relationship first and foremost. That is something Walter Grills understands. It was that understanding and love of human nature that enabled him to be such an effective mediator.


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