Mediation Agreement (New Zealand)

A Mediation Agreement in New Zealand commits the parties to resolve their dispute through mediation before resorting to court, and sets the process, costs, and confidentiality that apply under the Companies Act 1993.

Unlike arbitration (which produces a binding award) or litigation (which produces a court judgment), mediation is non-binding unless and until the parties reach a settlement and sign a formal written Settlement Agreement. The mediator has no power to impose a decision on the parties — the mediator's role is to support communication, explore options, and assist the parties to find common ground. This distinguishes mediation from adjudication (available in construction disputes under the Construction Contracts Act 2002) and arbitration (governed by the Arbitration Act 1996).

Mediation is used in New Zealand across a broad range of dispute types. Employment disputes are frequently mediated through Employment Mediation Services, a free government service provided by the Ministry of Business, Innovation and Employment under the Employment Relations Act 2000. Tenancy disputes may be mediated through the Tenancy Tribunal under the Residential Tenancies Act 1986. Commercial disputes, construction claims, resource management matters, family property disputes, and professional negligence claims are all commonly resolved through commercial mediation.

The Arbitrators' and Mediators' Institute of New Zealand (AMINZ) is the primary professional body for commercial mediators in New Zealand. AMINZ maintains a panel of accredited mediators, provides mediation rules, and sets professional and ethical standards. Resolution Institute (operating in both New Zealand and Australia) also provides mediation services. The Disputes Tribunal, which handles claims up to NZD $30,000, frequently supports informal settlement discussions between parties.

A Mediation Agreement records the parties' commitment to the mediation process, appoints the mediator, establishes the procedural framework, and confirms the without-prejudice and confidential nature of the process. It also confirms that the mediator is properly engaged on terms both parties have agreed to, including the fee allocation.

In many New Zealand commercial contracts, dispute resolution clauses require the parties to attempt mediation before commencing arbitration or litigation. The Mediation Agreement implements this contractual obligation or, in the absence of a prior dispute resolution clause, gives effect to the parties' mutual decision to use mediation as their first step in resolving a dispute.

A Mediation Agreement is needed whenever two or more parties agree to resolve their dispute through mediation, whether under a prior contractual dispute resolution clause or by mutual agreement after the dispute has arisen. It is appropriate across a wide range of disputes and is often the first step in a dispute resolution process.

You need a Mediation Agreement when: your commercial contract includes a dispute resolution clause requiring mediation before arbitration or litigation, and a dispute has arisen requiring you to implement that clause; you and the other party have agreed to attempt mediation of a commercial dispute without a prior contractual obligation to do so; you are involved in a construction dispute and wish to use mediation under the Construction Contracts Act 2002 before commencing adjudication or litigation; you are an employer or employee seeking to resolve an employment dispute through private commercial mediation (rather than the free ERA mediation service); you are involved in a property or tenancy dispute and wish to use a private mediator rather than the Tenancy Tribunal; or you are a professional or a business involved in a negligence or insurance claim and your insurer has agreed to fund a commercial mediation.

For employment disputes, Employment Mediation Services (provided free by the Ministry of Business, Innovation and Employment) is the most common mediation pathway and does not require a formal Mediation Agreement — the ERA supports the process. However, for private commercial mediations involving employment issues, a formal Mediation Agreement with an AMINZ mediator provides a structured and professional framework.

For smaller disputes (claims up to NZD $30,000), the Disputes Tribunal offers an informal, low-cost process that includes supportd settlement discussions. Parties to Disputes Tribunal proceedings do not need a formal Mediation Agreement for Tribunal-supportd settlement.

For higher-value commercial, construction, or professional disputes, a formal Mediation Agreement with a professional AMINZ mediator is the most appropriate framework. The Agreement confirms that both parties commit to good-faith participation, that the mediator is properly appointed, and that the without-prejudice and confidential nature of the process is confirmed in writing.

A thorough New Zealand Mediation Agreement should include several key provisions to be effective and to give the parties and the mediator a clear framework for the mediation process.

The parties clause identifies each party to the mediation, including their full legal names, addresses, and the representatives who will attend the mediation session with authority to settle. Confirming authority to settle is critical — a mediation is ineffective if the attending representatives cannot bind their organisations to a settlement without further approval.

The dispute description clause identifies the dispute or matter to be mediated. A clear description helps the mediator prepare and confirms that the scope of the mediation is understood by all participants.

The mediator appointment clause names the agreed mediator, their professional affiliation (e.g. AMINZ panel member), and confirms that the mediator is impartial, independent, and has disclosed any conflicts of interest. Where the parties cannot agree on a mediator, the clause may provide for appointment by the President of AMINZ or another appointing authority.

The mediation logistics clause specifies the date, time, and venue of the mediation session (or the process for agreeing on logistics). It may also address the format of the mediation — joint sessions, private caucuses, or a combination.

The without-prejudice and confidentiality clause is arguably the most important provision. It confirms that all communications in connection with the mediation are without prejudice to the parties' legal positions and are confidential. It should also confirm that the mediator cannot be called as a witness in subsequent proceedings and cannot disclose information obtained in caucus without consent.

The authority to settle clause confirms that each party's representative has full authority to agree to and sign a binding settlement at the mediation. Without this, a successful mediation may unravel if a representative needs to seek approval from absent decision-makers.

The fee allocation clause specifies how the mediator's fees will be shared between the parties. Costs are most commonly split equally, but the agreement may allocate costs differently.

The settlement recording clause confirms that any settlement reached at mediation must be recorded in writing and signed by the parties' authorised representatives to be binding under the CCLA 2017. The forms-legal.com Mediation Agreement (New Zealand) provides a ready-to-use template that meets New Zealand legal requirements.