Mediation within the Tribunal
The following is information on how mediation within the Tribunal might work. The Tribunal’s final form will be known once the Bill is passed.
Mediation is a confidential process that gives parties the opportunity to work with a trained mediator to reach a resolution together, or narrow the points of dispute.
If you are directed to mediation, you should expect to negotiate and possibly compromise with the other party during the process.
The mediator acts as a facilitator, communicator, motivator and scene-setter, creating the appropriate environment for the process to be effective. The mediator will not make decisions, offer legal advice, or force parties into an agreement. The mediator will make sure the parties understand what they are agreeing to.
If the parties agree to a settlement at any point during the Tribunal process, including at mediation, the Bill allows for the terms of the settlement to be recorded as a formal decision which can be enforced as a District Court order.
When mediation may occur
Mediation can take place at any point after your claim has been accepted by the Tribunal. It will be up to the Tribunal to determine, on a case-by-case basis, whether mediation would be helpful.
The Tribunal can expedite a claim to hearing, if they believe that’s more appropriate for a certain case. An example might be one where mediation has already been attempted and the issues and points of dispute are clear.
If the Tribunal directs you to mediation, MBIE will provide an independent, professional mediator at no cost to the parties.
You will be notified of the mediation venue, date and all other relevant details.
Expectations of mediation
You will be required to participate in mediation or provide appropriate notice if you cannot.
Mediation can be very effective when all parties are informed and authorised to settle. For example, a person representing a company would need to have authority to sign an agreement on the company’s behalf.
Timeframe for mediation
The Tribunal can set a time limit on the mediation process to keep a claim progressing.
Lawyers and technical experts
You do not need a lawyer to attend mediation. If you have engaged a legal representative, a non-legal representative, or technical expert, they may be included in mediation. You may bring a support person to mediation.
All discussions, and the details of agreements that take place in mediation, are completely confidential. All documents created for the purposes of mediation are also confidential.
The mediator is not able to be called as a witness, referred to or relied on in any other proceedings.
Reaching an agreement
If the parties reach an agreement during mediation (or at any other time during the Tribunal process), the claim with the Tribunal will be ended.
The mediator is required to retain a copy of the terms of settlement and forward it to MBIE for confidential storage after the mediation.
Information related to the mediation may be gathered for research, educational, monitoring and evaluation purposes so long as the parties and specific matters in issue are not identifiable.
Mediation referred back to the Tribunal
If you cannot reach a settlement in the time provided, the mediation period may be extended or the claim will go back to the Tribunal, potentially for a hearing. However, the Tribunal will be able to direct parties to mediation more than once during the Tribunal process, if necessary.
Find out more
MBIE is happy to help answer any questions. Contact us for more information.