How To Resolve Employment Disputes At Mediation

The answer for most difficulties in relationships, employment-related or otherwise, is to communicate more – not less.

Nevertheless, communicating in a tense work environment, when making eye-contact is hard enough, can be very difficult.

Additionally, we may wonder whether the other side is even going to listen. Will they be reasonable? Will I feel ambushed?

In those cases, mediation may be just what you need.

Mediation creates a safe context for employers and employees to communicate privately, with the assistance of outside help.

This short article is about understanding what mediation is, why you should consider it, and how you can make the most out of it by preparing wisely.

WHAT IS MEDIATION?

Mediation is a special kind of meeting between parties to a dispute.

It is not a meeting to decide who is right or wrong. Unlike in the Employment Relations Authority or before the Employment Court, there is no one present at mediation with the authority to declare a winner.

Instead, the focus of mediation is on whether you can reach an agreement with the other side that will avoid the need for a winner to be declared.

A mediator attends to chair the meeting and to help the parties reach an agreement if possible. Their function is not to decide anything.

How mediation typically unfolds

Most mediations follow a predictable pattern (though there can be variations depending on the preferences of the mediator or the nature of the dispute):

  • The mediator introduces themselves to the parties while they are in separate rooms, and has a brief discussion with each about the nature of the dispute and whether there are any key issues that need to be noted upfront.
  • The parties convene in the same room. The mediator lays the ground rules, which includes reminding the parties that the discussions are to be kept confidential.
  • The initiating party will be offered the opportunity to speak about the dispute from their perspective without interruption from the other side. The mediator may have questions at various points and may permit questions from the other party.
  • Subsequently, the responding party is accorded the same opportunity.
  • The mediator may then try to outline some suggestions for resolution and encourage discussion on that theme. Ultimately, the mediator may consider that it will be beneficial for the parties to go back into their separate rooms, where they can speak with the mediator privately about options for resolution.
  • Offers of settlement will be exchanged either directly between the parties in the same room, or via the mediator travelling between the separate rooms.
  • If an offer of settlement is made and accepted, the Mediator will draft up a settlement agreement for the parties to sign. If no offer is accepted, the mediator may call the mediation to an end and discuss a way forward, which may include leaving the possibility for further discussions open.

WHAT ARE THE BENEFITS?

There are a number of benefits of attending mediation:

  • It is free. In the employment context, the Ministry of Business, Innovation and Employment provides mediators and a venue for mediations at no cost to you. You just have to request one, and they will liaise with you and the other side to find a suitable time.
  • It is confidential. Nothing you say at mediation can be used against you (though there are exceptions such as where statements are not made genuinely for the purpose of attempting to settle the dispute). This means you can freely share your views without fear of saying something that might come back to haunt you.
  • It is often successful. Up to 80% of employment disputes are resolved at mediation.
  • It is quick. Mediations will typically be scheduled within a matter of weeks from the time that you request one. They often take no longer than half a day.
  • It is almost inevitable. Almost all employment disputes that are filed in the Employment Relations Authority must be mediated first. So if the dispute is looking like it will head to the Authority, why not attend mediation sooner rather than later?

HOW TO REQUEST MEDIATION

You can request mediation by emailing the Mediation Service of the Ministry of Business, Innovation and Employment.

Here is a suggested template for making that request:

Madam/Sir,

[Insert names of the employer and employees that want to mediate] have agreed to attend a mediation in [city or town] and ask that a date be scheduled.

The matter for mediation is [Insert a description of the dispute that has arisen between you, e.g. “a personal grievance that has been raised by John Doe for unjustified disadvantage because he believes he was suspended from work unfairly”].

I attach a copy of [Insert a description of any correspondence you have sent between you and include reference to an employment agreement if there is one in writing (remember to actually attach these documents with the email when you send it), e.g. “three emails that the parties have sent between each other in relation to this issue along with a copy of John’s employment agreement”]. Can you please arrange for this information to be placed on the mediator’s file?

I look forward to receiving suggested dates for mediation in due course for the parties to consider.

Yours sincerely,

HOW TO PREPARE

If you want the mediation to succeed, you must attend it with the following things in mind:

  • The other side must agree if you are to reach a settlement. In other words, your focus must be on persuading them rather than defeating them. If you alienate them by being unnecessarily hostile during the meeting, settlement may become less likely. In some cases, saying some things that are deeply felt will actually be persuasive. This is best reserved for describing your own feelings, such as how the actions of the other party made you feel. Otherwise avoid name-calling or “point-scoring”.
  • No one’s deciding right and wrong. There is no point trying to persuade the mediator of your views – they’re not making a decision. Instead, you need to persuade the other side that they should settle with you and why. Usually, this means attempting to persuade the other side that the Authority or the Court is going to rule against them and in your favour. If you are successful in persuading them, they will wish to avoid the likelihood of a loss in that forum and seek to settle on terms that are acceptable to you.
  • Settlement is win-win and lose-lose. Each side must give up something if they are going to move on. That includes you.

So how do you prepare for a mediation with the purpose of getting the other party to agree to an outcome you are happy with?

Prepare a persuasive statement

Carefully craft an opening statement to read through when it is your opportunity to give your version of events.

A well-prepared opening statement will serve as a good script to keep you on task as you deliver your story. There are three key sections that you should touch on:

  • What happened from your perspective. Briefly recount the key events that touch on the dispute. Remember to keep this brief and only touch on the events that are directly relevant in order to have the most impact.
  • What you think the decision-maker will think and why. A lawyer can help you with this aspect and may be able to refer you to previous cases that would support your view of the decision.
  • What you will seek if the dispute goes further. You need to state what you are prepared to do if the dispute is not resolved and what that will mean to the other side.

Formulate your opening offer

At some point you may well be asked what you would like to settle for. Essentially, this is your wish list, within reason, of what you are comfortable with settling the dispute on.

I say within reason because if you have a wish list or proposal that is entirely unrealistic then you will be seen as making light of the entire process and wasting everyone’s time. It may be difficult to recover to a place of sensible negotiation after that point.

Therefore, formulate something that you want the other side to give or accept that is what you would be most happy with to bring the matter to an end. It may not be the lowest offer that you would be prepared to agree to – but it should be an offer that is realistic and that you would be very happy to have reached. It is an aspirational figure, within the bounds of reason.

When presenting offers, it is important to have them backed up by reasons so that they are not seen to be plucked out of thin air. In the employment field, you may say that one of the sums you are seeking as an employee is the amount of lost wages you would receive if it were shown that you had been dismissed unfairly, and then present a clear calculation which makes sense.

This is a key part of how you will prepare for a mediation to ensure that it is persuasive. Reasons are persuasive. Vague ideas and seemingly arbitrary numbers are not. You have to be able to give a cogent reason for each element of your offer in order to have the persuasive effect on the other side that you seek.

If you have an aspirational offer, each element of which can be backed up with reasons, then that is probably a good starting point for when you are asked what you would be prepared to settle the matter for.

Know your “walk away” point

A key part of your preparation will be to have a clear idea of when you are going to end the mediation if it is not progressing to a point of resolution that you are happy with. There is little point carrying on the negotiations if it is unlikely there will be a good outcome from your point of view.

There must be a boundary in your own mind over which you will not pass in the negotiations. This will help peg how you progress through the negotiation phase and assist you to determine what offers to make and when.

As you near your boundary line, your offers may only move in small increments, because you know that you are not prepared to go over that line.

In order to determine your boundary you must assess what is the best possible scenario for you if you do not reach a settlement.

What will you give or get if you cannot reach a resolution of the dispute at mediation? That is the boundary over which you will not cross.

CONCLUSION

The next time you find yourself in an employment relationship where a dispute arises and communication is made difficult, consider mediation as an option.

Being clear about the purpose of mediation and bearing in mind that your main aim should be to persuade the other side rather than score points against them, will increase your chances of resolving your dispute as early as possible.