You have had an employment problem within the workplace and the other side is threatening to take you to court (the Employment Relations Authority). You neither desire nor can afford this. You realise that this dispute needs to be settled quickly to stop the ever continuing legal costs. So how can you resolve the situation?
Mediation is a way whereby a neutral person, the mediator, helps the people in the dispute (the parties), to discuss and re-evaluate the issues in order to come up with solutions of their own making, usually resulting in an agreeable outcome for all parties involved. The mediator helps the parties reach their own decisions. Once reached, the decisions are recorded in a Record of Settlement which stipulates what should be done, by whom, where, when and how. When signed by the parties, the Record of Settlement is enforceable, similar to other contractual agreements. Mediation drastically reduces the time, cost, disruption, negative publicity and the loss of control compared with taking a dispute through the courts.
Mediation is confidential to those present and is held on a "Without Prejudice" basis. The results are often uniquely customised solutions to suit the situation at hand. You cannot prevent disputes arising, but you can choose to deal with them in a manner that has the least interruption on your life.
With mediation, the parties are in control of the process and they control the outcome. However, if your matter does not resolve itself at mediation and you then find yourself at the Employment Relations Authority (ERA) you are now in for a completely different process.
The ERA resolves disputes by having a neutral third party (the Authority Member) listen to both sides, ask the necessary questions in order to clarify the situation, and then impose a decision. The parties to the dispute have some control over the process but, unlike mediation, no control over the outcome. The process requires the parties to present their arguments (known as the Statement of Problem & Statement in Reply) to the ERA. Witnesses can be called to give evidence and the parties can have their lawyers or advocates present to act for them. The Authority Member's decision, known as the determination, is legally binding and can, if necessary, be enforced by the courts.
A major point of difference between Mediation and Arbitration is that, in mediation, the outcome reached by the parties is consensual, however, in arbitration, the outcome is imposed by the Authority Member.
