Mediation for Screen Production Contractors

David Fleming, mediator at the Department of Labour, answers our questions about mediation services available to contractors.

What is mediation?

In mediation, an impartial mediator works with the parties involved in the dispute to help them reach a mutually acceptable resolution. Mediation is not a hearing process. It is a process involving discussion and negotiation, managed by the mediator.

Usually, all discussions and documents prepared for the purposes of mediation are confidential and can’t subsequently be used in legal proceedings. This gives the parties the freedom to explore issues and try to find consensus without any fear that what they say will be used against them elsewhere.

Do the parties have to agree to mediation?

In some situations, including employment disputes, people may be ordered to attend mediation. However, mediation between a contractor and a principal (the person who hired them) would normally be by consent of both parties.

Is there a maximum number of parties that can be involved in a single case?

There is no maximum number of parties. Disputes that affect several people but arise from a “common fact” may be dealt with in a single mediation. (For example, if a film company halts production halfway through and simultaneously terminates identical contracts between itself and a number of technical crew, this could be dealt with in a single mediation.) However, disputes arising from different facts, even if similar in nature, would generally be dealt with separately. (For example, if several actors have disputes with the same agent about payment of appearance royalties arising from different productions.)

How does mediation differ from the Disputes Tribunal?

Members of the Disputes Tribunal have the power to decide the matter. In mediation, the aim is to promote consensus between the parties, and generally, any decisions are made by the parties themselves. (With employment disputes, the parties may agree to give the mediator decision-making power. But that option isn’t available for disputes between contractors and principals.) However, the mediator may express views on the issues, and has the power to make decisions about the process. Unlike the Disputes Tribunal, there are no limits on the amount of remedies that can be sought through mediation.

Parties may choose to be legally represented at mediation, but do not have to be. Parties can’t be legally represented in the Disputes Tribunal.

What issues can be dealt with by the Department of Labour?

The Department of Labour can provide mediation for employment relationship problems, including disputes about whether a person is a contractor or an employee. The Department can also provide dispute resolution services for people in other work-related relationships, such as dealings between contractors and principals (the person who hired the contractor).

There are a number of private providers of mediation services able to deal with commercial disputes between companies that are beyond the Department’s jurisdiction.

At what stage in a dispute should a contractor consider approaching the Department of Labour mediation service?

It is best to seek mediation fairly early on. If a dispute drags on, it can become more costly and difficult to resolve. Make a substantial attempt to resolve the dispute through direct discussion, and if that fails, seek mediation before spending time and money preparing for a hearing.

Is there a general process, or does it differ from case to case?

There are two main phases to most mediations - discussion of the issues between the parties, followed by negotiation to resolve those issues. The exact process followed will vary depending on things like the nature of the issue, the amount of information already exchanged between the parties, and personalities involved.

How effective is mediation in resolving disagreements?

Mediation is highly effective. In the Department of Labour’s core employment jurisdiction (where parties may be directed to mediation), the rate of settlement in mediation is about 75%.

Generally, it costs far less to prepare for mediation than arbitration or a court hearing, making mediation a cost-effective way to resolve disputes.

What kind of outcomes can be achieved?

In mediation, the parties may agree on any outcomes they can both live with. While people often bear in mind the remedies that could be ordered in a hearing, there are no limits to what can be agreed. That means the potential outcomes of mediation are more flexible than those that can be achieved through a hearing process.

For example, if the parties to a contract disagree about what it means, they may seek a ruling from a Court. However, agreeing in mediation to vary the terms of the contract may be better for both parties than facing the costs and risks of a hearing.

How are outcomes enforced?

Any outcomes are included in an agreement between the parties. In employment disputes, these agreements are enforceable through the Employment Relations Authority.

For contractors, any agreement would be enforced in the same way as any other contract.

Does the service cost?

There is no charge for the Department’s mediation or dispute resolution services.

Are resources available so contractors can learn about resolving disputes before they reach the mediation stage?

Information on problem-solving, including preparing for mediation, is available from the Department’s website: http://www.ers.dol.govt.nz. Mediators are also available to speak to groups about dealing with workplace conflict. Again, there is no charge for this.

Are there common issues amongst the disputes that contractors bring to mediation, and if so, are there any lessons contractors can learn from them?

One common cause of disputes is termination of contracts, including disagreement about what, if any, money is owed. Often there is dispute about whether a person has been an employee rather than a contractor.

The main lesson for contractors is to consider what issues could potentially cause conflict down the track. Try to clarify these issues when you enter a contract, and don’t wait until a problem has already arisen.

Contact Megan on

09 302 2022

info@nztecho.com

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How can contractors contact the Department of Labour to find out more about mediation services?

Enquiries to the Department of Labour are generally received through the contact centre:

Email: info@dol.govt.nz

Phone: 0800 20 90 20