KEY POINTS:
What happens when your mediator's behaviour causes more problems than it solves?
Mediation has become the standard first step in the process for resolving employment disputes.
Most parties agree to mediation, and if they do not, generally they are ordered to attend mediation by the Employment Relations Authority. Mediation has a very high success rate in terms of resolving employment disputes, including dismissal claims.
Most mediations are handled by the Department of Labour, which employs a number of trained mediators. The vast majority of such mediators are experienced and conduct themselves in a very professional manner. They are very adept at bringing warring parties together and getting them to resolve their differences, which is obviously far better than fighting it out in front of the Authority and then having a binding decision imposed.
However, occasionally mediators go awry. Richard Te Ao worked for the Department as a mediator, and was the subject of a complaint by two parties involved in a dispute, where he acted as the mediator at a standard mediation meeting. Both were women, and one reported to the other.
Both complained that he was biased in favour of the more junior party. She also raised concerns about the number of times he met her privately compared to the other party, and said that he hugged her during these meetings. She said he also made personal comments about the other woman, including comments on her management style and her sexuality.
Following receipt of the complaint, the Department suspended him. It carried out an investigation, and eventually dismissed him for serious misconduct.
He complained to the Authority, saying he had been unjustifiably dismissed, and sought reinstatement (on an interim basis, pending the hearing of his claim). He told the Authority that he was a warm and natural person whose manner lends itself to physical contact. He denied hugging the woman referred to above, saying he put his arm across her shoulder, and patted her shoulder. He admitted making the personal comments, but said this was a means of building empathy. As for the comments about sexuality, he said he was merely trying to identify whether there was a personal relationship between the parties which was impacting on the situation.
The Authority thought it was arguable whether he should have been dismissed, but said Mr Te Ao's case was weakened given that he admitted many of the facts alleged. It also accepted the public's perception of the mediation service could be damaged if he were reinstated, and concluded that compensation would be an adequate remedy if he eventually won his claim. It therefore refused reinstatement.
This sort of behaviour can have consequences for the parties attending. It is generally easiest to resolve disputes at the first mediation meeting. When mediation is repeated, the parties' positions are often more entrenched. It's therefore important that the mediator is as prepared as possible, and conducts themselves professionally. Fortunately, this type of behaviour is very much the exception rather than the rule.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
Photo: Mark Mitchell
