I am an employment advocate and qualified mediator, working with both employees and employers to resolve their differences, mostly being personal grievance claims. I am speaking from the coalface.
In the last three years there has been no discernable increase in determinations of the Employment Relations Authority (ERA), but the number of Members has increased by around 50%. Why is it that the ERA is still taking so long to decide matters before them?
The Members are swamped with cases and are more frequently taking the full three-month period to issue their determinations. In the intervening period between an Investigation Meeting, or submissions being fully received, the presiding Authority Member’s memories of the features of the case may become foggy over that period of time. It is human nature to forget specific details over time, even after taking notes.
The ERA, which is part of the Ministry of Business, Innovation and Employment (MBIE) refers the vast majority of claims to MBIE’s mediation service, where they say that more than 90% of cases settle. If negotiations break down, the ERA have to take the case back. Why has there been a significant increase in failed mediations, that has increased the ERA’s workload?
The Mediation Service is failing to perform adequately for reasons I will explain.
Firstly, to touch on my background, when I got into employment advocacy I simultaneously and then subsequently completed a qualification that heavily involves the mediation process including acting as a mediator. That was the Graduate Diploma in Business (Dispute Resolution) qualification through Massey University. As part of this I completed a Mediation Practicum course which was an intense full seven days of mediation training, practice and assessment.
Several of the mediation and dispute resolution papers I took made me eligible to become an Associate Member of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ), for which I am a member and follow ethical standards.
Not once were we ever taught to threaten parties with “ending the mediation” at will. This is a threat that MBIE mediators make all the time now in employment mediations, particularly when they start becoming frustrated when things are not going their way.
Nor were we ever taught to obstruct and intervene while the parties are discussing their differences constructively across the table after their uninterrupted opening statements are more-or-less completed, to then prevent the parties talking to each other.
The whole point of mediation is to get the parties talking to each other. There needs to be a very good reason to stop them talking. The MBIE mediators in most of the mediations that I attend are now trying to stop us speaking to the other party in joint session, and they do this without any good reason.
If you do not follow their pedantic rules about how to have a conversation with the other party, they will threaten to end the mediation, and they will rush you into separate rooms. On Zoom that is done quickly with the click of a button by the MBIE Mediator.
As I convey, one of their rules is to subjectively decide what discussion between the parties is relevant or not in their own subjective opinion.
In a very recent mediation we were all muted by the mediator during the Zoom session while having a consensual two-way constructive and friendly dialogue with the employer party. I unmuted myself, and then was muted again. The further re-iteration of me trying to unmute myself and speak featured that the MBIE Mediator did not explain why they were doing this. I could best describe it as suddenly becoming a muting/unmuting war for no good apparent reason.
After having left the session to then telephone my client, I sought an explanation privately with the MBIE Mediator as to why they had done this. I was told that it was “their” mediation and that they could decide what is discussed. They also said we were talking over each other during a two-way dialogue. I can say that this was not what was happening at all because the parties were politely taking turns to speak at appropriate pauses. It was a normal conversation.
To have a two-way discussion, when there are appropriate pauses, and then the other party speaks, they may then pause, and then there is a reply, and as the discussion evolves, naturally there will be some limited overlap. But that is normal in having a conversation with another human being.
Muting us in the way they did so was disrespectful and unhelpful.
In undertaking my study and my association with AMINZ, not once were we ever taught to label the mediation as it being the “mediator’s” mediation, and that the parties cannot have some control over the mediation process. The AMINZ Code of Ethics, Ethical Statement 9 says: A member should recognise that mediation is based on the principle of self-determination by the parties. Mackie (The ADR Practice Guide, 2007) suggests that giving the parties control of the process and outcome in an informal setting makes parties “active and confident participation far more likely” because formal processes (cf. the ERA, the Employment Court) provide an adversarial environment for parties (p. 204). The parties should be free to agree upon the process between them, and then agree to the outcome between them.
If the parties want to talk to each other during the process, unless there is a very good reason otherwise, the mediator should sit back and let them talk to each other!
When the MBIE mediators prevent parties from speaking to each other across the table, and to then rush parties into separate rooms, and from that point, there being absence of the parties having fully clarified information, conveyed information, challenging aspects of each other’s cases, asking questions, and exploring the issues further: the parties are then made to make settlement offers, prematurely without further evaluative assessment of the case. There is a big problem with that approach, for which I will return to some educational literature on mediation.
With “settlement” style mediation, which is what MBIE Mediators are trying to use (and not very well I will add), an “evaluative” approach should be taken where liability is contested between the parties, but where liability is not contested then settlement style meet-in-the middle/split-the-difference mediation without any real rationale to it can work (Spiller, 2007, pp. 81, 84).
Putting this into practice I am saying that all employment cases involve assessment of the merits, and the merits should be further explored and debated at the table when the parties have an opportunity to talk to each other about it, that being, before the MBIE Mediator rushes the parties into caucusing and starts to tell each party to start making settlement offers with the mediator being the messenger.
The parties are therefore not being given the opportunity to fully present their view of their case to the other party with the use of the MBIE mediator. This is why offers that are then made by the parties become so diametrically opposed. Increasingly, it is not resulting in settlement.
I am also noticing that some MBIE mediators are lacking knowledge of important legislation and judicial decisions in the employment jurisdiction. Some further education in this area and applying it, to evaluative risk assessments with both of the parties, together and separately, will go a long way to seeding in the parties' minds that they should settle their case and avoid having risk in the ERA and potentially the risk of a challenge of a determination in the Employment Court.
A copy of the New Zealand Employment Law Guide, Wolters Kluwer, formerly written by Richard Ruddman, and now Simon Schofield will be a great help in evaluation of any employment dispute.
In a recent mediation I had when the MBIE Mediator attempted to draft the Section 149 settlement agreement, they did not include the Controlling Third Party as part of the document that was there and also party to the dispute in terms of the Triangular Employment Amendment Act and associated claims that they faced. Multiple party disputes and how to write a record of settlement to resolve a dispute involving more than two parties was an intellectual challenge for them and they referred to how “uncommon” disputes like that are. Look for example at cases like the recent Uber and Gloriavale matters before the Employment Court. You will also see disputes which involve multiple respondent parties involving the true identity of the employer. Drafting a record of settlement to record all parties is not a hard thing to do as per our training as mediators. I had to do it during the Mediation Practicum course at Massey University when being assessed by Virgina Goldblatt, co-author of the famous Mediation Blue-Book (Boulle, L., Goldblatt, V., & Green, P. 2015).
Complaints by MBIE against advocates are now a thing. Several months ago, for example, the CultureSafe Facebook page featured a public post involving Allan Halse having been issued a written warning from the MBIE Mediation Service. It referred to allegations against Mr Halse of his conduct during a mediation, but, did not have any specificity as to what the conduct complained of was exactly. It followed that Mr Halse’s post was to complain about not being given reasonable notice of what the complaint was, and that Mr Halse was not being given an opportunity to make a rebuttal. The letter threatened potentially discontinuing providing a service to Mr Halse in the future.
Recording mediations is not something anybody wants to have to do, but if a practitioner or advocate is going to potentially be complained about in what as I have described above is becoming an increasingly difficult environment that we are working in with having to navigate the intricacies of how MBIE Mediators want to rule with an iron fist, advocates and practitioners may want to record the mediation to protect themselves against any unwarranted complaints. This is important because if a practitioner faces a complaint by management of MBIE Mediation Services by one of their mediators against them, it becomes their word against yours, and they may threaten excluding you from being able to participate in future mediations indefinitely. Your career would potentially be at an end pending judicial intervention with MBIE.
After Zoom mediations became a common occurrence following Covid-19, all MBIE Mediators now ask the parties if they are recording and tell them that they are not allowed to record the mediation. They say that it would breach confidentiality in terms of s 148 of the Act.
Simply recording a mediation is not an action that breaches confidentiality. But sharing a recording to a third party would be. We can understand the concern about recording a mediation, but simply recording would not amount to a breach of confidentiality in itself. With that said, obviously I can’t identify any parties here.
You have at the very least recorded the mediation in your mind and memory between your two ears. Telling a third party about what was said would be a breach. Whether a recording is made is neither here nor there.
The best settlements that I achieve for my clients, for employers and employees, are without the involvement of a MBIE mediator during the negotiation between my client and the other party. In many other cases we may have already been to mediation and the matter has not settled due to the restrictions that were imposed on us while trying to communicate with the other party.
I can simply pick up the telephone and speak to the other party at any time; we do not need an MBIE Mediator to do that. More often now I telephone counsel for the other party during caucusing to convey what the MBIE Mediator did not allow me to convey during joint session anyway.
We are mostly only using the MBIE Mediation Service to upload the Record of Settlement to have the MBIE mediator to sign it off. That’s a Section 149 Settlement that I draft and have approval from the other party (the mediator does not draft it). I prefer to draft it myself as some MBIE Mediators struggle to draft them properly.
To be able to elicit reasonable settlements from employers when I am acting for employees, we often have no choice but to continue to the ERA as the mediation has been a waste of time without us being given an opportunity to have a proper conversation at the table as I have described. It is frustrating and the ruling of the iron fist during MBIE mediation is not a pleasant experience for us or for our clients.
The service that is being provided I do not regard as truly being mediation as what is taught by universities and professional institutions. Skills that universities and tertiary institutions teach, and institutions that mediators can be a member of that work to support mediators and provide further training are often not being deployed there.
That is why the ERA has more cases before it and is struggling with its workload.
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