What happens at an MBIE mediation?

Andy Bell:

If you've got an MBIE mediation coming up, here's what nobody tells you. You'll probably spend a lot of that day alone in a room by yourself. The mediator is not a judge. They will not decide who's right. And whatever you sign at the end is final. You can never take it back. So let me walk you through exactly how that day runs and the preparation that decides how it ends.

I'm an employment lawyer and I'm in these mediations really frequently. I might have done over 200 by now. So I want to start with what mediation actually is, because most people get this wrong before they even arrive. It's free. MBIE, the Ministry of Business, Innovation and Employment, provides a mediator at no cost to either side. You apply online or you can ring an 0800 number and a case coordinator finds you a date. You can do it in person or over Zoom or even on the phone, and you say which you'd prefer when you apply. Most of them run about three hours, but some can go all day if it's a continuing relationship.

But it is not a hearing. Nobody gives evidence. Nobody gets cross-examined. The mediator has no power to decide your case. And they won't tell you who they think will win, although sometimes they hint. Think of it as a negotiation with a referee, not a trial with a judge. And if you haven't actually raised your grievance yet, remember most personal grievances have to be raised within 90 days.

Now, preparation. This is where mediations are won, and it's the part people skip. Write a one-page summary of your problem. What happened, in order, and with the dates. MBIE recommend that themselves and almost nobody does it. On the day you'll be tired and you'll be emotional, and that page keeps you straight. Bring your documents. Employment agreement, the letters, the emails, pay slips, time and wage records. Not a folder of everything, the six things that actually matter.

Then work out your number before you arrive. Not a feeling, a number built out of parts. Your notice, how long it will take you to find a comparable role, anything unpaid, and if you were treated badly, compensation for humiliation, loss of dignity and injury to feelings. That's a real head of claim under the Employment Relations Act, not a nice to have. Be ready for them to push back on that too. Since the law changed in February, if your own conduct contributed to the situation, that compensation for humiliation is off the table completely. Not reduced, gone. So is any chance of getting your job back. And if what you did amounted to serious misconduct, you get no remedies at all. So expect the employer to lean hard on everything you did in the lead-up.

Next, write your bottom line. Write it down. And write it down before you walk in the door. Because at 3:00 in the afternoon, when you've been in a small room for four hours and you just want it to be over, your judgment is not the same as if it was 9:00 in the morning. Let your morning self make that decision. And think about what you want that isn't money. An agreed reference, an agreed statement to staff about how you left, your record saying you resigned rather than you were dismissed, an apology, although apologies can be hard to get. These things cost the employer very little and they're often worth more to you than another $2,000.

One small thing, you don't need to dress up. MBIE say that themselves, come in whatever you'd normally wear. And you can bring someone as well, a support person, a lawyer, an advocate.

Right, the day itself. You arrive and you're taken to your separate room. You don't sit in a waiting room with your old boss. The mediator comes to you first, introduces themselves, checks that you're okay, and explains how the mediation is going to run. Then usually everyone comes into one room together. Each side gets to say what the problem is without being interrupted. For a lot of people it's the first time anyone has actually listened. It can be uncomfortable. It's meant to be fairly short. And then you split up, back into your own rooms, and the mediator starts moving between you. That has a proper name, and it's called caucusing. A caucus is a private session between the mediator and one party. And if it never comes back together at all, if the mediator just walks back and forth all day, that's called shuttle mediation.

Here's what's actually happening in those private sessions, because it isn't what people expect. The mediator is not a postman carrying numbers between two rooms. In your room they will pick at the weak points in your case. Have you got evidence for that? What happens if the Authority doesn't believe you? What is 12 months of this going to cost you? And it can feel like they've quietly taken the employer's side. They haven't. Rest assured, they're doing exactly the same thing next door. Asking your employer what their process looked like in writing and what it's going to cost them to defend it. It's called reality testing, and both rooms get it. It is the engine of the entire day. Everybody arrives certain they're right, and then the caucus is where that certainty gets softened just enough for a deal to exist.

The second thing about caucusing is that almost nobody knows, and you should use it. What you tell the mediator in private stays private unless you let them share it. Which means you can say, my real bottom line is this number, but don't tell them that yet, and they'll hold it. You can be completely honest with the mediator about where you actually are without giving away your negotiating room.

The offers will go back and forth. It usually feels like nothing is happening for a long time and then it moves quickly at the end of the day. And when you hear final offer at 2:00, final is a negotiating word. The other thing to know is that the whole day is confidential. What's said in the mediation can't, with only narrow exceptions, be used as evidence later at the Employment Relations Authority or in the Employment Court. That's exactly why people can afford to be frank in there.

Now, the ending. Pay attention to this one. If you settle, the mediator writes it up as a record of settlement. Once you've signed it, and the mediator signs it under section 149, it is binding, final and enforceable. You cannot change your mind on Monday. You cannot go off to the Authority afterwards because you slept on it and you feel differently. It's done. So read every clause before you sign. Check the confidentiality and the non-disparagement wording. Check exactly how the payment is described. Check the reference and check what will be said about why you left. Check your final pay. Take the 15 minutes. Nobody in that building can rush you.

And if you don't settle, that isn't a failure. Plenty of matters settle a fortnight later. You can reconvene. You can go on to the Employment Relations Authority, or if both sides agree, you can ask the mediator to give a recommendation or even a binding decision, although most people don't do that.

So that's the day. Free, confidential, about three hours long, a room of your own, and a mediator whose job it is to test both sides rather than choose between them, ending in something you can't undo. Prepare your one page, bring your documents, build your number, and decide your bottom line before you walk in.

The hardest moment of that day is when the first offer comes back and it's insulting. I've made a whole video about what to do with that one. Maybe watch it next. Leave me a comment. What's the one thing you'd want to know before walking into a mediation?