What happens at mediation?
This is the caveat for all articles we publish. These are opinions freely given, and they aren’t going to be right in all situations (see here for our terms and conditions) so use at your own risk. For tailored advice, book an appointment to discuss.
This a description of a New Zealand system, so if you’re not taking a case here, it won’t be directly applicable. But you might find it useful- it’s a logical system, and people are people everywhere.
Competing truths
Without getting political, our modern world is full of competing truths. You only need to wade into a debate on a political leader, social issue, or fringe conspiracy theory to see how people can cherry-pick information to fit their narrative. This will happen at mediation too, and be prepared for two very different truths of the same situation.
The mediator isn’t there to care
It’s common for people to assume that the mediator is the independent voice of reason, that they will agree with you and be an ally in the process. But they won’t, and that’s not a slight on them. They are here to facilitate, not arbitrate, and they will only express act to progress matters towards a settlement. This means they will only express an opinion against positions or perceptions that are irrational or unrealistic.
You tell your story
First you tell your story. This can be a simple argument, but often it’s a chronological narrative- starting with the commencement of the issue that led to this, and ending with the emotional impact that this has had on you. It’s not the only way, but this is a common and useful format. Your representative (if you have one) will cover the technical errors (see here and here for examples of what these could be). This isn’t the right or best way, but it covers the bases well.
You want to put on the table the following: what happened, how it was wrong, and what impact it had on you. Emotional impact is tricky- it is relevant in court, because it will influence how much the court will award you if you win. In mediation, it may signal to the employer’s lawyer the risk, but more importantly it will trigger either sympathy or annoyance in the employer (perhaps both); which I can’t tell you, you’ll need to estimate that yourself and plan accordingly (see here)
The employer tells their story
The employer will present their explanation, their defence of their actions. Typically this is a broad general approach, or a detailed technical account aimed at convincing the opposing representative of the strength of their case. Often the employer won’t focus on you because they don’t want to engage with the emotions.
Once in a while, the employer will go on the front foot and say what they really think. Mediation is confidential, so this is the one situation that an employer say what they really think, so watch out- this may happen.
You discuss
Generally, there is a bit of discussion here, and often can get prickly. Lawyers and advocates like to argue professionally (or sometimes unprofessionally), and generally emotions are high. This discussion will go on for a bit, but don’t expect much from it. These are just opening positions of the bargaining, and don’t expect your employer to concede points here.
You go to separate rooms, and the mediator shuffles
Once the discussion has occurred, or has gotten too heated, the party will adjourn to separate spaces (either into different physical rooms, or into online breakout rooms). You won’t meet again unless the parties specifically request to do so.
The mediator will now shuffle between the parties seeking to work out a deal. How much you can get, should get, and will get is a very large topic, perhaps too complex for these short articles. But to keep it simple, the potential payout is a combination of three questions: a) what are the chances the courts would find in the employee’s favour, b) how much could be awarded, and c) how prepared are parties to go to court (either you or them). I talk about these more here and here.
A deal is struck or it is not
This is straight forward- either it will happen now or it won’t. Let me give you some advice: if you’re close to a deal, push to close it out and get it done, even if it’s not quite what you want- the bird in the hand is better than two in the bush. This is because in general, people are hesitant to commit and prefer to wait and see, so need to be in a ‘ready state’ to commit to a deal.
If mediation fails and you are on track to go court, you can still do a deal before the court date, but this may not work- partially because the employer isn’t ready to sign the deal, or they have already paid their lawyer to prepare their case, or they believe they will win, and time for ‘go away money’ has passed.
If you don’t commit to a settlement at mediation, you need to recognize you are committing to one of two options; going to court (see here for more) or dropping the case entirely.
