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Mediation is a voluntary and confidential process we can help you use to resolve workplace complaints.
It involves a meeting between:
- the person who made the complaint
- the party the complaint is against.
A Fair Work Ombudsman Mediator (FWO Mediator) also attends the meeting.
The FWO Mediator is a neutral 3rd person who helps the parties talk about the matter and find an agreed resolution.
While the FWO Mediator may offer suggestions, they don't make a decision or give advice about other possible outcomes if the matter can't be resolved during mediation.
Mediation may happen:
- after we get a workplace complaint
- during the investigation process
- before legal action is taken.
Note: FWO Mediators are trained in line with National Alternative Dispute Resolution Advisory Council requirements.
Suitable / unsuitable complaints
Mediation may be suitable for complaints where:
- the facts are disputed (mostly relating to wages and conditions, eg. a disagreement over hours of work performed or an employee's classification level)
- the matter disputed is unclear and there's a lack of evidence to prove / disprove the complaint
- the amount of underpayment is disputed
- the complaint is about workplace discrimination.
Mediation is generally not suitable for complaints where:
- the issues are straightforward and / or the evidence clearly shows where someone hasn't complied with Commonwealth workplace laws
- the party complained against has been investigated before by FWO
- the case is complex (eg. complaints about coercion, freedom of association or transfer of business)
- the matter is appropriate for legal action.
Requesting mediation
A Fair Work Inspector may recommend mediation for certain complaints.
However, if you feel mediation would help resolve your matter, you can call the Fair Work Inspector dealing with the complaint to request this.
Remember, mediation is voluntary and both parties must agree to participate.
Advantages of mediation
Mediation is easy, immediate and accessible.
Mediation:
- can be started quickly
- lets both parties become directly involved in reaching a settlement
- helps parties explore alternatives they might not have considered on their own
- is confidential and informal
- is potentially cost-effective compared with legal action
- doesn't prejudice your rights in any way.
Through mediation, creative solutions may become part of the resolution.
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Mediation process
1. Preparing for mediation
It's to your advantage to come to the mediation prepared to participate.
Be ready with:
- a short history of the matter - when and why it began and what the main issues are
- information about previous attempts to resolve the matter
- your preferred outcome
- any related concerns.
2. How mediation works
- The parties explain their issues in a joint meeting with the FWO Mediator.
- The FWO Mediator may meet with each party separately to clarify information and help the parties work towards an agreed resolution.
- If the parties reach an agreed resolution, they put this in writing and sign it (called a 'deed of final agreement'). The FWO Mediator also keeps a copy.
Note: We can't enforce the deed of final agreement. Where a party doesn't abide by this agreement, it's the other party's responsibility to seek resolution. This may involve legal action.
3. Who attends?
The person who made the complaint and the person the complaint was made against (normally the employer) should attend the mediation.
Support people may also attend, but only when all parties give their permission. The FWO Mediator will help the parties find a resolution if they disagree on having a support person attend the mediation.
The role of the support person is to provide support only.
Note: Interpreters may also attend if needed.
The person who lodged the complaint, the other party and the support people must agree to and sign a mediation agreement before mediation starts. The FWO Mediator also signs the mediation agreement.
The mediation agreement covers confidentiality, liability and indemnity and the appointment of the FWO Mediator.
4. Ending a mediation
- Either party can end the process at any time.
- The FWO Mediator may suggest that the mediation end if there's no progress made.
- The mediation ends successfully when the parties agree to a resolution and sign a deed of final agreement.
If there's no resolution, the matter can continue to be investigated by a Fair Work Inspector, or the person who made the complaint can take their own action.
Mediation is confidential
The mediation process is confidential and the FWO Mediator keeps no transcript or records of the mediation.
Does the mediator decide?
The mediator has no authority to decide how to settle the matter. Their role is to help the parties reach a resolution they're satisfied with.
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