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Don't go nuclear: get mediation

Date: 10/05/2017

I would pay good money to be a fly on the wall at a mediated meeting between US President Donald Trump and North Korean Leader Kim Young.

The Pope, when asked to comment on the situation, urged world leaders to seek a solution through diplomacy. He went further and suggested that a third party, such as Norway, should put themselves forward to mediate the dispute between North Korea and the US.

Norway is no stranger to this role, having successfully facilitated an agreement between Israel and the Palestinians in the early 1990s, known as the ‘Oslo Accords’.

Mediation is a process that is well established in employment law. In fact around 80% of disputes between employers and employees are resolved in mediation instead of being escalated to the Employment Relations Authority or Employment Court.

In its simplest sense, mediation involves an independent third party facilitating discussions between the two sides in a dispute and assisting them to reach a resolution themselves.

Most employment mediations are arranged through the Ministry of Business, Innovation and Employment (‘MBIE’) which offers a free mediation service. However, it is also possible to engage private mediators provided agreement can be reached on the rules that will govern the mediation process.

Mediations are confidential and without prejudice, meaning the discussions are off the record and cannot later be referred in the Court if efforts to resolve matters are unsuccessful. This means that  parties can make concessions and compromises at mediation without worrying that they will later come back to haunt them. This is often a big factor in helping get disputes settled.

In terms of how a mediation works, usually each side will open the mediation by setting out their respective views on the issue. The mediator will then facilitate discussions on firstly what has occurred, and then what it will take to resolve the issues that have arisen. 

How the process works can vary depending on the mediator’s assessment of what will work best. In some situations the parties will remain in one room discussing matters face to face, and in others they will be put into separate rooms with the mediator facilitating the discussion by shuttling between them.

Where an agreement is reached at mediation, this is almost always set out in a Record of Settlement which, once certified by an MBIE mediator, is full and final. Any breaches of a Record of Settlement can be enforced in the Employment Relations Authority relatively efficiently and may result in the party who has breached the agreement being ordered to pay a penalty.

One of the biggest concerns that parties often have about doing a deal at mediation, is whether it will be kept confidential. Whilst settlement agreements nearly always include a term requiring confidentiality, there have been a number of instances where parties have breached this term. In such instances, there are enforcement procedures and potential damages that can be claimed against the party breaching confidentiality, and this is not something to be taken lightly.

By and large, mediation is generally a very effective process for resolving employment disputes. This is important as in many cases, the cost of preparing for and going to Court can easily outweigh the potential remedies that might be recovered by a successful grievant. And then there is the stress associated with having one’s employment relationship problem being aired in an open forum and becoming a matter of public record.

Employment disputes can also be resolved outside of mediation and this often happens through direct negotiations between the employer and employer, or their representatives. However, there are no shortage of situations where for a variety of reasons, the intervention of an independent mediator is the nudge needed to break down entrenched positions. This is especially so in situations where emotions run high and parties can struggle to see the wood from the trees.

In terms of the North Korean crisis, the stakes are obviously a lot higher, the personalities involved larger than life, and the issues entirely different to what we encounter in the workplace. There is clearly no simple fix.

The Pope’s suggestion of a mediation may unfortunately be wishful thinking, as it is difficult to imagine that the key players will be able to agree on the ground rules, let alone be capable of achieving a successful resolution.