PUBLICATIONS | 22 November 2013

Confidentiality of mediation negotiations – How robust can you be

The mediation of employment disputes is an important feature of employment law practice in New Zealand. The Employment Relations Act 2000 (ERA) creates a regime under which parties to an employment dispute are, almost universally, directed to attend mediation before the Employment Relations Authority or the Court will hear and determine the matters between them. A high proportion of mediations result in an agreed outcome.

Mediation is a forum within which parties can engage in discussions that are statutorily privileged, without prejudice and confidential. Mediation is intended to be an informal process within which the parties can be frank with each other regarding their views on the ongoing viability of the employment relationship, if it still exists, or seek to settle all claims arising out of any allegation of unjustified dismissal. Given these factors, mediation can involve robust exchanges as to where the blame for a particular problem lies and how the matter would play out in the Authority.

In George v Auckland Council [2013] NZEmpC 76, the Court recently had the opportunity to make findings in relation to a particularly robust mediation in which an employee felt she had been threatened by her former employer’s solicitor. The judgment provides guidance on the bounds within which negotiation at mediation may take place and the permissibility of comments that amount to advising the other side of potential further litigation, should the matter not resolve at mediation.

The particular issue dealt with in George was what actions in the course of mediation will justify a departure from the confidentiality obligations created by s 148 of the ERA. In other words, the case deals with the situations where the content of a mediation may be admissible in Court...