The Sutton fiasco, and how dispute resolution should work

Equal employment opportunities commissioner Jackie Blue probably spoke for many this past week when she voiced her disquiet over Roger Sutton’s decision to speak publicly about a confidential sexual harassment case that led to his decision to step down from his role as CERA chief executive.

The now-departed Mr Sutton’s remarks were of course made at a highly publicised media conference in which he announced his resignation. They triggered a volcanic national debate about workplace ethics and what constitutes acceptable behaviour among corporate leaders. 

Dr Blue’s concern for the unnamed woman at the heart of the current situation – a point also echoed by PSA national secretary Erin Polaschuk – is that there is now widespread public debate about her complaint and by implication the professional sanctity of workplace-related mediation.“I do not understand why the confidential complaint and mediation processes in the Employment Relations Act or Human Rights Act were not used,” she said.

State services commissioner Iain Rennie has also emphasised, perhaps a little belatedly, his disappointment at the breaches of confidentiality in the process that followed the investigation, which has emphasised again the issue of sexually demeaning conduct at work. 

Still, if there is a something of a bright side to be found in the current fiasco, it may be in the renewed attention it has given to the vital role of confidential mediation in this and scores of other similar workplace-related cases that take place in New Zealand every month. 

Whatever the shortcomings in the latest case, early mediation remains the best, most effective resolution tool for employment disputes.

Mediation is quick. It usually doesn’t cost much (especially when compared to the alternatives) and it allows all issues to be dealt with. Mediation also has the greatest ability to lessen the damage to relationships and thus allows for the best chance for providing a positive future. 

Mediation can be used before parties get into any kind of formal dispute and its methods can be used to structure business in a way that lessens the likelihood of getting into that arena. 

But confidentiality is key to all of this. It allows protagonists to say what they want, without fearing the repercussions either in the public domain, or if the mediation doesn't work and the matter escalates to the Employment Relations Authority. 

Interestingly, though, the finer points about confidentiality are sometimes not as clear-cut as they might first appear.

Yes, the Employment Relations Act 2000 says that what is said, done, and created for, or during, the mediation process for the purposes of the mediation, is confidential.

Such communications cannot be referred to beyond the mediation process without consent of the party or parties involved.

At one point, though, the Employment Court allowed for exceptions to confidentiality in mediation, but later adjusted its stance, maintaining that mediation communications should be afforded "absolute" confidentiality. Since then it has shifted a bit, by permitting exceptions in certain circumstances.

Clearly, though, what happened in the local saga went many steps too far – even if nobody involved looks likely to stand to lose the kind of money now being looked at by the actor Mel Gibson’s former partner, Oksana Grigorieva. 

Earlier this year, Grigorieva was forced to pay back $US375,000 of a settlement she received from Gibson after she violated the terms of a confidentiality agreement by talking about their relationship on a radio show. 

But just as the CERA boss has paid his own price, the rest of us can also take what’s happened – confidently – as a useful reminder of how dispute resolution ought to work.

Deborah Hart is executive director of the Arbitrators’ and Mediators’ Institute of New Zealand.