Mediation: What is it, and why is it worth considering?

In a recent example an employee was involved in a workplace dispute, but did not want to invest lots of time and money on resolving it.  She was also worried about colleagues at work gossiping about this matter if she brought it up with her boss in a formal grievance process.  For this type of situation mediation can provide a good solution.  It will require less of an investment of time and money.  It will also be faster than going to the Employment Relations Authority and is also private and confidential.

Many laws in New Zealand promote mediation as the main way to resolve disputes. Some Acts even require the parties to attempt or consider mediation before they can apply to be heard in a court or tribunal.  Employment Law legislation for instance emphasises mediation as the main initial means of resolving disputes. 

Some disputes are not worth the investment in legal fees it would take to resolve them in court, and would remain unresolved, if there was not a cheaper alternative. Mediation can be provided privately, or by the many agencies currently in existence to deal with specific types of disputes.  While private mediation will not be free, most government provided mediation is free.

If you need a quick solution, then mediation is much more likely to satisfy your needs than litigation.  Mediations can be arranged quickly and usually only takes a few hours (depending on the complexity of the matter). 

Another reason why mediation has become very popular is because it allows parties to talk openly and honestly about what is really behind the dispute. This is possible because in most cases, all the communications must be kept confidential. This protection gives parties the peace of mind that what they share in mediation will not be used against them later. Because parties talk more free and frankly to each other they are more likely to resolve the dispute.

Mediation also gives the parties much more control over the process, and the outcome.  The court is limited by what remedies it can give, but in mediation the parties can agree to whatever they like. Solutions can be much more creative, and customised to the people involved. As a result, parties may be more satisfied than they would have been if a court decided the outcome.  In employment matters for example, parties can agree to amend their employment record to show resignation instead or dismissal; they can agree to apologise; provide a written reference; or provide or undertake counselling or training.  The mediator has no power to impose a decision, (unless the parties agree), but acts to facilitate the communication between the parties.  Only the parties can agree to settle. 

The role of a good lawyer is to help the client navigate their way through a dispute and advice on whether mediation is the right option. The lawyer can help the client prepare for the mediation by understanding the dispute and identifying the client’s needs and aims. The lawyer assists the client by collecting the necessary evidence and organising it in a meaningful way. At mediation, the lawyer helps the client tell their side of the story. Sometimes this might mean the lawyer does all the talking and sometimes it means helping the client plan what to say. The lawyer also advises the client on legal issues, offers made, and offers to be made to the other side.  Having a lawyer present can level the playing field for a client who is nervous, inexperienced or intimidated by the process, the other party, or for any reason is not confident to go it alone. 

If you are involved in a dispute then you should talk to your legal adviser about mediation as an option if that has not already been considered.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.