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I didn't really mean it when I said that I was sorry
One of the more colourful characters of the English Premier League over recent years was Vinnie Jones. Jones, who cut an impressive figure on the soccer field, distinguished himself some years ago by releasing a video which, amongst other things, provided instruction as to how to get away with fouling opposition players without attracting the referee's attention. Some of the fouls were (to pick two words) indecent ? and painful.
As one might expect, the League was less than impressed with Mr Jones' product - and took some steps to disassociate itself from it. For his part, Mr Jones enjoyed almost instant stardom - and a subsequent, and very successful, acting career (which ultimately saw him land some major Hollywood roles).
One of the curious things about the dispute resolution process provided by our employment legislation is the way in which it nicely accommodates characters like Mr Jones.
Underlying the Employment Relations Act is, of course, a general obligation of good faith owed by parties to each other in the course of an employment relationship. Amongst other things, parties are generally required to deal with each other in good faith - which is generally interpreted to mean in a co operative and supportive manner.
Another fundamental premise is the provision of mediation as a primary problem solving forum. Pursuant to the legislation, the Department of Labour provides a Mediation Service, allowing employers and employees alike to have free access to mediators - often within tight timeframes.
The legislation provides certain constraints upon the mediation process - most notably relating to its confidential nature. Section 148 of the Employment Relations Act requires a mediator to keep confidential any statement, admission or document created or made for the purposes of the mediation. That provision also prevents a mediator from being called as a witness in any later proceeding.
One of the consequences of this "cloak of confidentiality" is that if - contrary to the overriding obligation - a party chooses to act in mediation in breach of good faith, there is very little that the other party can do as a consequence. Anything said at mediation - however dastardly or mischievous - must remain confidential. Even if he or she is a witness to terrible acts of unfairness of unkindness, the mediator cannot be called upon to give any evidence about a party's behaviour. Vinnie Jones would have a field day.
The difficulties associated in this area were illustrated in the recent decision of the Employment Court in Lowe & Tarawhiti v New Zealand Post Limited (Unreported, Employment Court, Auckland, 23 June 2003).
In that case, the parties had agreed to attend mediation before a private mediator (as opposed to one provided by the Department of Labour). In preparation for the mediation, the mediator had asked each party to provide him with statements of the issues for mediation. The employees' lawyer started this process by sending a letter - marked "without prejudice" - to the employer's lawyer, together with a request for the letter to be passed on to the mediator (presumably together with the employer's own statement of issues).
Such was the employer's adverse reaction to the content of the employees' lawyer's letter that it did not prepare a statement of issues for mediation. The mediation was then cancelled (or at least postponed).
Instead of proceeding to mediation, the employer went back to the Court and, amongst other things, asked it to consider the contents of the employees' letter - on the basis that it disclosed the true nature of the employees' case.
This involved the Court in a careful consideration of two things - the nature of "without prejudice" communications, and the effect of section 148 of the Act.
The law has long recognised the benefit in parties being encouraged to settle their disputes without resort to litigation. For public policy reasons, the law accepts that parties should be able to negotiate with each other, without the subject of their negotiations being used to their prejudice in the course of any later proceedings. For that reason, the Court accepts that communications which are made "without prejudice" should remain confidential - and not brought as evidence at trial.
The scope of this privilege is not absolute - in certain circumstances (such as where there is an argument as to whether a settlement was actually agreed or not) the Court may consider this type of communication. In the usual course, however, it will not.
In this case, the Employment Court took the view that the letter from the employees' lawyer did not contain an offer of settlement made "without prejudice" to the employees' ability to assert their case at trial. It held, therefore, that the letter did not qualify for confidentiality on that ground.
The Court did, however, take a different view concerning the application of section 148. It found that the letter was written to a person providing mediation services, for the purposes of the mediation. On that basis, (and in the absence of the employees' consent) the Court held that the employees were entitled to insist upon the document remaining confidential from the Court.
This decision illustrates that, except in a limited number of unusual cases, communications which are made at mediation (or for the purposes of mediation) will remain confidential to the parties - and cannot be brought as evidence in any later proceedings.
One can only wonder if Vinnie Jones might find time in his hectic Hollywood schedule to provide his own "mediation services" ?
