An employee’s guide to mediation in New Zealand
- Anne-Marie Dolan
- 12 minutes ago
- 7 min read
If you’re facing an employment dispute, mediation is often a good option for early resolution. Under New Zealand’s employment law framework, mediation offers a chance to resolve matters without heading into a full-blown legal hearing.
What is mediation?
Mediation is a confidential, voluntary, facilitated conversation between you and your employer (or former employer), guided by an impartial mediator. The aim is to reach an agreement that both sides can accept.
Employment Mediation Services within the Ministry of Business, Innovation and Employment (MBIE) is a free mediation service for any employee or employer with an employment relationship problem in New Zealand.
Where does mediation fit in the dispute process?
Before you formally challenge your employer or file a personal grievance, dispute or complaint, there is an expectation of “good faith” in trying to resolve the issue. Often, that includes direct conversation, raising the issue internally, and then mediation. In many cases:
You raise the issue via a personal grievance.
If you and your employer can’t resolve it by talking or negotiation, you propose mediation.
If mediation fails or isn’t appropriate, you may proceed to Employment Relations Authority (ERA) or court.
One key point is that under the Employment Relations Act 2000, parties are required to attempt resolution before escalating. In some situations, the ERA may direct that parties attend mediation before the hearing. In practice, mediation often happens early, before evidence gathering, formal applications, or discovery. In that way it saves stress, cost, and delays.
Who is present at mediation?
At a minimum, the people present will usually include you as the employee or ex‑employee, your employer as the respondent, and the mediator. Beyond that, you are allowed to bring:
An advocate or representative (e.g. employment advocate, union representative, or lawyer),
A support person (someone to give you moral or emotional support), and/or
Other people by agreement (e.g. HR staff, co‑workers)
Government mediation rules explicitly allow you to bring whānau, union reps, a support person, or a representative. The mediator may also, at their discretion, meet with parties individually in private sessions to explore positions, test offers, or talk through risks. You should check in advance who will attend, whether your advocate can speak on your behalf, and whether any observers or others will be present.
Do I need a legal representative to go to mediation?
A core question many employees ask: Do I need a legal representative for mediation? The short answer is no, but it is often very helpful. Here’s how an experienced employment advocate can assist you at mediation:
Legal analysis: They can assess your legal position, identify strengths and weaknesses, and advise on realistic outcomes.
Advocacy: During mediation, the advocate can present your case clearly, test the employer’s proposals, and shield you from pressure.
Strategy and bargaining: They can propose creative solutions, present trade‑offs, and help you manage concessions smartly.
Drafting settlement terms: They ensure the record of settlement correctly captures what you agreed, includes enforceable clauses, and protects your interests.
Calculations and valuations: They help you quantify your losses, calculate compensation, and compare offers.
Risk assessment: They can explain the downside if mediation fails (costs, time, uncertainty in ERA).
Emotional buffer: They can take over when the process gets intense or emotional, so you can stay focused.
Process management: They ensure all procedural steps are followed, deadlines met, and documents submitted correctly.
Mathews Walker advocates frequently settle cases through negotiation or mediation before any more formal steps are required. They operate in most cases on a “no win, no fee” basis to lower the financial barrier for employees to access representation.
What happens during mediation?
At the beginning of the mediation, the mediator will outline the process giving you the opportunity to ask any questions you have and checking you are uncomfortable with the process. They will then allow you and the other party to give your side of the story and to describe your desired outcomes. The mediator will then help you and your employer to identify and discuss the issues at hand and potential options for resolution. The details of these may need to be negotiated and at this point the parties may be separate and the mediator might share the offers between them.
Mediation typically takes about three hours. But in complex or emotionally charged cases, it might take longer. Mediation happens in a semi‑formal environment, not in a court setting. You are not under oath, and the mediator does not impose a decision unless both parties agree to that role. The mediator’s job is to keep the process moving, manage emotions, and help you and the other side avoid collapse.
What outcomes can you expect from mediation?
One of the great advantages of mediation is flexibility. Unlike the ERA, which is bound by legal remedies, mediation allows for creative, customised outcomes. Some outcomes available include:
Monetary compensation, often paid as a lump sum.
Reinstatement to your former role.
Remedies short of reinstatement such as a modified role, altered hours or changed reporting lines.
An apology and acknowledgement of wrongdoing.
Reference letter or certification to assist in gaining future employment.
Training or other measures designed to repair the working relationship.
Confidentiality and/or non‑disparagement clauses including an agreement not to badmouth each other.
Payment of costs or legal/advocate fees by the employer.
Other non‑monetary undertakings such as changes to policies or other systemic improvements in the workplace.
Agreed outcomes will be drafted into a record of settlement and both parties will have the opportunity to review this before signing. Once a record of settlement is signed, it's final and enforceable. You typically cannot later go to the ERA over what you agreed. Because of that, it’s vital to review the settlement carefully, ideally with your advocate, before signing.
Also, note that mediation agreements are generally confidential. What you say in mediation cannot typically be used later in ERA or court, and the settlement often prohibits either party from publishing or disclosing details.
What happens if mediation doesn’t resolve the dispute?
If mediation fails, your next option might be a formal application to the ERA. The remedies under ERA are more constrained (e.g. compensation, reinstatement) and the process is more rigid, formal, and time‑consuming. Alternatively you may wish to continue negotiating (with or without mediator support), ask the mediator for a recommendation or binding decision (if both parties agree), or withdraw the grievance.
If you go to the ERA, your case will involve formal procedures such as a statement of claim, evidence exchange, hearing, and a legally binding decision. That takes more time, costs more, and is more adversarial.
Even if mediation fails, your efforts in negotiation and attending mediation with your employer can still benefit you. The ERA may take into account your willingness to mediate and negotiate in good faith.
Frequently Asked Questions (FAQs)
What is mediation?
Mediation is a confidential meeting between you and your employer (or former employer), where a neutral person (the mediator) helps you try to sort out your employment dispute. It’s a way to talk things through and reach a solution without going to a formal hearing.
Is mediation free?
Yes. If you use a government mediator through MBIE (the Ministry of Business, Innovation and Employment), it’s free for both sides.
Do I have to go to mediation?
No one can force you, but it’s strongly encouraged, and sometimes required, before going to the ERA. If you refuse without good reason, it might count against you later.
Can I bring someone with me?
Yes. You can bring an employment advocate, a lawyer, a union representative and/or a support person (like a friend or whānau). Having someone with experience can really help.
What does the mediator do?
The mediator runs the session, keeps things respectful, and helps both sides understand each other. They don’t take sides or decide who is right. They guide you toward a possible agreement.
Will I have to talk directly to my employer?
Not always. The mediator can hold private sessions with each side if needed. You can also ask your representative to speak for you.
Is what I say in mediation private?
Yes. Mediation is confidential. What you say can’t usually be used later in the ERA or court, unless both sides agree.
What happens if we reach an agreement?
You’ll sign a record of settlement. This is a legal document that ends the dispute. It’s final once signed. You generally can’t go back or reopen the issue.
What if we can’t agree?
You can try more negotiation, book another mediation, or take the dispute to the Employment Relations Authority. Mediation is not the end unless you want it to be.
What kind of outcomes can I get?
You might get compensation, an apology, a reference, changes to your job, or other agreements. You don’t have to follow legal remedies only as mediation allows for flexible solutions.
How long does mediation take?
Most sessions last about 3 hours. Some are shorter and others are longer depending on the complexity of the case.
Should I get an advocate or lawyer?
It’s not required, but strongly recommended. A good advocate can help you prepare, negotiate smartly, and protect your interests.
What if I feel unsafe or uncomfortable?
Tell the mediator ahead of time. You can ask for separate rooms, bring support people, or take breaks. The process should feel safe for you.
What if my employer doesn’t show up?
Mediation is voluntary, but not turning up can reflect badly on them. You may still go to the ERA and the fact that you tried may help your case.
Mediation, when used well, gives you a powerful chance to resolve an employment dispute on your terms, with less cost, time and stress than formal legal proceedings. But success depends on preparation, clarity of objectives and smart negotiation so having support, such as an employment advocate, can be beneficial. If you have a dispute and the employer is offering mediation (or the ERA orders mediation), take it seriously. Use the chance to be heard, to explore creative outcomes, and to retain control over your future.
If you would like help preparing for and attending mediation, get in touch with an expert for a free consultation today. MathewsWalker.co.nz | 0800 612 355
Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.
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