What happens at mediation?
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. This isn’t an absolute bible on this either- it might be different if you go, maybe because your case is different, or because the mediator is different. But this is pretty standard flow of what goes on.
Competing truths
Without getting political, our modern world is full of competing truths. You only need to watch a debate on a political issue, 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.
The employee tells their story
First they tell their 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 them. It’s not the only way, but this is a common and useful format.
The employee will put on the table the following: what happened, how it was wrong, and what impact it had on them. The representative (if you have one) will cover the technical errors, and paint as extreme a picture as possible of the emotional impact this has had on the employee. This can be highly frustrating, but it’s just one of the ‘this is how the game is played, so just grin and bear it- I counsel against engage in the drama.
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. Is it a good tactic? Maybe? The question is whether the employer can bully/suppress of force the employee kowtow and not pursue their actions any further. It’s a risky play, but sometimes appearing accommodating can just encourage people to expect to receive more than is deserved.
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).
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 employee 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 the time for ‘go away money’ has passed.
