I recently wrote about a client of mine whose accountant resigned. She claimed she was constructively dismissed.

The client (we’ll call him Fred) rang me last week. He now needs advice on the unjustified dismissal personal grievance raised by the accountant. She’s asked Fred to agree to go to mediation.

Fred’s first impulse was to refuse and take his chances in court.

Fred admitted he did not know much about mediation. I explained it is a dispute resolution process provided by the Labour Department. People who are (or have been) parties to employment relationships and who have problems from that can access mediation if they have been unable to solve the problems themselves.

An employment relationship problem (defined in the Employment Relations Act 2000) includes a personal grievance, a dispute, and any problems arising out of or relating to an employment relationship. It excludes problems fixing new terms of employment.

Parties to work-related relationships (such as independent contractors) can also go to mediation. Mediation is usually voluntary.

Usually mediation begins with each participant outlining his/her position, then the mediator works with them to explore options for settling the problem.

This only occurs if the parties can come to their own agreement. If they do, it will be recorded in writing and the settlement will be legally binding.

Fred said he still wasn’t convinced. I explained the advantages of an agreed, confidential final settlement.

His interest was sparked.

Fred rang again yesterday. He’s agreed to go to mediation. I gave him some tips for preparation:

  • Send the mediator copies of key documents before the mediation.
  • Get all your facts together in advance. Sometimes it’s useful to write a short statement of your position to read at mediation.
  • Are there any questions you want to ask the other side? You may get the opportunity.
  • Who will go to the mediation? You will need the person with authority to settle the claims. You might also take a lawyer, a support person or a key witness. Alternatively, a key witness could give you a written statement on any contentious points.
  • Set your budget or “bottom line” before the mediation. What is essential in a settlement for you to agree to it? Some settlements are in full and final settlement of all claims by the employee, and are confidential.
  • Allow plenty of uninterrupted time for the mediation.

Mediation is a discussion; conflicts of evidence won’t be settled so be prepared to talk about the facts then move on. The mediator is not a decision maker (except by agreement of the parties) and will not tell you who is “right” or “wrong”.

Listen to the other side in mediation.

Even if you don’t settle, you will have a better understanding of their position.

Don’t settle in haste and make sure you understand the terms you are agreeing to.

Fred’s ready. I’ve explained the ideal outcome is a win-win. I think he understands – if not, my next column may be about preparing for an Employment Relations Authority investigation meeting.

By Penelope Ryder-Lewis, first published in The Dominion Post

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