Mediation is a process where an impartial third party helps you and your employer resolve an employment relationship problem. The aim is to reach an agreement that settles the matter — and most of the time that agreement comes with some form of compensation.
Mediation is one of the cornerstones of employment relationship problem resolution in New Zealand. It operates on a without prejudice and confidential basis, meaning you can speak freely without fear that your words will be used against you later.
The mediation service is free. Representation is not. Unrepresented workers get destroyed in mediation because the employer is gamifying the process. They have Human Resources professionals, lawyers, and experience on their side. You need someone in your corner who knows the game.
This process typically involves:
The mediator will help you identify the main issues and find potential solutions. You cannot be forced into a decision or agreement in a mediation process.
The most common form of mediation between employees and employers is mediation conducted by the Employment Mediation Services within the Ministry of Business, Innovation and Employment (MBIE). While this is the typical location for mediation and the service is available to any employee or employer with an employment relationship problem, it is not the only option. Private mediation is also available.
"One of the cornerstones of employment relationship problem resolution in New Zealand. Mediation generally is provided by mediators engaged by MBIE. It operates on the basis that the people present at a mediation respect that it is conducted on a without prejudice and confidential basis."
Culturesafe NZ Ltd v Turuki Healthcare Services Charitable Trust [2020] NZEmpC 165
Mediation without representation is a fool's errand. Employers come prepared with Human Resources professionals, lawyers, and rehearsed strategies. They know how to pressure you into accepting less than you deserve. Your best chance to achieve a fair outcome is with experienced representation who knows the case law and won't let you get steamrolled.
The Employment Relations Act 2000 emphasises that "employment relationship problems are more likely to be resolved quickly and successfully if the problems are first raised and discussed directly between the parties" (s. 101(ab) of the Employment Relations Act 2000).
Mediation is appropriate for most employment problems, including:
"All of this reflects a Parliamentary intent to create a framework to support early resolution through direct discussion between the parties and (where appropriate) with the assistance and support of a specialist mediator appointed under the Act."
Downer New Zealand Ltd v Livingstone [2019] NZEmpC 109 — Chief Judge Christina Inglis
If you have an agreed dispute resolution procedure in your employment agreement, you must use it. In Sky Network Television v Duncan, the Court of Appeal decided that a matter should have been dealt with through the disputes process in the employment agreement before the employer sought to dismiss the employee. Always check your agreement for any required dispute resolution steps.
Mediation is voluntary. However, participation in mediation can be seen as part of the good-faith duties of an employment relationship. If you choose not to take part, the other party might be able to take their complaint to the Employment Relations Authority (ERA) which can require you to attend mediation.
"The Court is required to consider mediation throughout the life cycle of proceedings. Given the particular circumstances, I have decided that the parties ought to be directed to mediation. That seems to me to present a useful opportunity to look at tying up any loose ends in a supported setting and with the assistance of a specialist employment law mediator."
Ceres New Zealand LLC v DJK [2021] NZERA 403 — Chief Employment Judge Christina Inglis
It is quite common on a thorny issue for parties to an employment relations dispute to go to mediation more than once, particularly if the matter involves bargaining for an agreement.
Each mediation is different and has its own format. It can involve different types of activities:
This may be through email and telephone conversations. A mediator will see if there's a way of sorting out the problem without needing a mediation meeting.
This is when parties meet with a mediator in a semi-formal environment.
If the parties agree to a solution this will be written down in a record of settlement. This is legally binding and the parties cannot come back to it. For example, once a record of settlement is signed by the parties and a mediator from the Employment Mediation Services, you may not take the other person to the ERA if it relates to the same issue.
Normally, the parties must agree to any settlement — the mediator does not decide who is right or wrong. However, the parties can agree in writing to give the mediator power to decide the matters at issue pursuant to s. 150 of the Employment Relations Act 2000. If they do, the mediator's decision is final and binding, enforceable, and beyond challenge.
Mediators are not on the side of either party. They are independent people committed to helping parties resolve the problem. They must withdraw from any case if they think they might have a conflict of interest.
Mediators from the Employment Mediation Services are obliged to follow the Mediators' Code of Ethics.
Mediators can come from a variety of different backgrounds and have:
A mediator's role is to:
Find out how you achieve respectful mediation by reading the Terms of Engagement for Mediation.
All documents and any terms of settlement reached in mediation are confidential. This means information may not be shared with anyone outside of the mediation process. Because of this, what happens in mediation cannot be used as evidence in the Employment Relations Authority or Employment Court.
"All communications in mediation 'for the purposes of mediation' attract the statutory confidentiality except possibly where public policy dictates otherwise."
Rose v Order of St John [2010] NZERA 764 — Chief Judge G L Colgan
Part of any mediation settlement is that parties will likely have to make concessions. The important thing about mediation is that if these concessions do not lead to agreement, parties can move on to the Employment Relations Authority with the intent to seek different or increased remedies for an employment relationship problem — the mediation process will have no effect on the matters at a later point.
"...encouraging the parties to a mediation to speak freely and frankly, safe in the knowledge that their words cannot be used against them in subsequent litigation if the dispute does not prove capable of resolution at mediation."
Just Hotel Ltd v Jesidhass [2009] NZEmpC 25 — Court of Appeal
At the end of the day, mediation should be a safe place to discuss and resolve matters.
In Rodkiss v Carter Holt Harvey Ltd, an employee walked out of a mediation and stated that they were resigning. However, the Employment Court determined that this did not count as a resignation as mediation is a confidential process.
The requirement to report a dismissal or resignation to a professional body overrides the full and final nature of a record of settlement during mediation.
In these cases, the information disclosed about the mediation does not fall within the statutory definition of confidentiality in the Employment Relations Act 2000. For teachers, nurses and similar professionals there is a requirement that the employer notifies the appropriate professional body following the resignation of an employee or their dismissal in some circumstances.
It is probably wise to address the need for notifications when negotiating a mediation settlement, rather than to surprise the former employee and risk a challenge to the settlement.
The parties can also agree to waive the confidentiality. Mediation carried out by Employment Mediation Services in the course of collective bargaining may not be confidential.
Information that is shared during mediation but was created outside the mediation process is not confidential.
All successful mediations end in a Record of Settlement (ROS) document pursuant to s. 149 of the Employment Relations Act 2000. These are considered a statutory instrument, not a commercial contract, and subsequently do not require consideration.
"Caroline Sawyer issued proceedings in the Employment Relations Authority seeking to establish that a record of settlement she signed with her former employer, the Vice-Chancellor of the Victoria University of Wellington, was invalid and that she had been constructively dismissed. She was unsuccessful. The settlement agreement was held to be lawful and binding."
Sawyer v Vice-Chancellor of Victoria University of Wellington [2019] NZHC 2149
You should expect that the Record of Settlement that you sign will be lawful and binding. This is not a decision to make without experienced representation.
You should have representation throughout the mediation process. This is not optional if you want a fair outcome.
Employers treat mediation as a game — and they come prepared to win. They bring Human Resources professionals who attend mediations regularly, lawyers who know every tactic, and strategies designed to pressure you into accepting less than you deserve. They know the case law, they know what remedies are available, and they know how to make you doubt yourself.
Unrepresented workers routinely accept settlements worth a fraction of what they should receive. Some walk away with nothing because they didn't know their rights. Others sign Records of Settlement they don't fully understand, only to realise later they've given up claims they didn't know they had.
Having a representative who knows the relevant case law, understands negotiation tactics, and is there to fight for your interests is the difference between getting what you're entitled to and getting taken advantage of.
If mediation fails, then it's off to the Employment Relations Authority. Check out our section on the Employment Relations Authority to assist you in understanding the next step, or visit the ERA website for more information.
An overview of the mediation process and what to expect is available in multiple languages from Employment New Zealand:
Under the Employment Relations Amendment Bill 2025 (Government Bill 175–2), the proposed changes do not remove access to mediation services. If you have an employment problem, contact the mediation service to request assistance. Working for Workers is monitoring these developments closely.
If you or someone you know is considering raising an employment relationship problem, or does not have a representative for their mediation, then any delay in seeking the right advice can hurt your chances when it comes to the mediation process itself.
Working For Workers is happy to assist in mediation and in raising matters pursuant to your employment.
Working For Workers understands that it is hard to trust anyone when it comes to having your voice heard.
Often, the experience of raising matters and attending mediation can be stressful and you often feel alone without representation.
Working For Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your point across in mediation.
Please contact us today to discuss the matter and start turning things around for you.
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