MBIE mediators are supposed to know karakia and tikanga

MBIE's own competency framework says mediators should understand tikanga, use te reo appropriately, and be able to deliver karakia where appropriate. In my case, the mediator argued with me, refused to do it, and only later agreed to learn it and do it on the day. That is not a trivial side issue. It goes directly to competence, protocol, and respect in a New Zealand mediation setting.

I am not talking about publishing parties' bargaining positions, settlement figures, admissions, or confidential offers. I am talking about speaking about mediator conduct. That distinction matters. It matters factually, and it matters legally.

What MBIE's own framework says

MBIE's own mediator competency framework says mediators should identify parties' readiness and capacity to engage in mediation in accordance with legal, Maori tikanga, cultural, and ethical obligations. It says mediators should correctly pronounce and use te reo where appropriate, particularly in greetings, basic mihi, mihimihi, and opening and closing karakia. It also recognises the importance of cultural values underlying meeting protocols and identifies karakia as one of the tikanga concepts mediators should understand.

At the extended level, the framework goes even further. It contemplates mediators participating in waiata and delivering appropriate karakia for opening and closing meetings and blessing food. In other words, MBIE's own material does not treat karakia as some bizarre personal request that sits outside the mediation setting. It treats it as something mediators should be able to handle properly.

That matters because the starting point here is simple: if MBIE's own framework expects mediators to know how to deal with tikanga and karakia, then a mediator arguing with me and refusing to do it was a proper subject of criticism. It was not some invented grievance. It went to competence, cultural awareness, and the quality of the service being delivered.

Why I say speaking publicly about it is justified

The strongest legal point is that there is a real difference between:

• publishing parties' confidential bargaining content; and
• speaking about a mediator's own conduct, protocol decisions, and refusal to engage properly with tikanga.

Those are not the same thing. One concerns the parties' substantive dispute and attempts to resolve it. The other concerns the conduct of the mediator and the way the process was handled.

That distinction is supported by T v Chief Executive of the Department of Labour. That case is important because it rejects the idea that everything said or done in the course of mediation is automatically untouchable forever. The Court approached the issue functionally and purposively.

What T says

In T, the Employment Court made clear that the real question is whether the events in issue related to the purpose of the mediation, namely the resolution of the employment relationship problem between the parties. At [16]-[17], the Court recognised there was nothing to stop parties and representatives discussing what went on in mediation for the purpose of an employer investigation into alleged mediator misconduct, and nothing legally prevented the mediator from speaking to the investigators either.

At [23]-[24], the Court emphasised that the proposed evidence there was not about the parties' positions in the employment problem. It was about the mediator's own conduct. That distinction is critical. My criticism likewise concerns mediator conduct, not the parties' confidential bargaining.

At [39], the Court explained that confidentiality protects communications and interactions that remain within the broad parameters of mediation's purpose. That helps define the line. If the issue is genuinely part of resolving the employment relationship problem, confidentiality is strong. If the issue is collateral to that purpose, the argument for secrecy weakens.

The key reasoning appears at [57]-[61]. At [57], the Court said a purposive interpretation was required because a purely literal approach would prevent a mediator from ever giving evidence about anything that happened in mediation. At [58], the Court stated the governing principle: the question is whether the events related to the purpose of the mediation, being the resolution of the employment relationship problem. At [59]-[61], the Court drew the line between material tied to that purpose and material that falls outside it. Where the conduct is not for the purpose of resolving the employment relationship problem, the shield of absolute confidentiality is lost.

That reasoning supports what I say here. A dispute over karakia and tikanga is not one party's settlement position, concession, admission, or bargaining strategy. It is about how the mediator chose to conduct the process and respond to a tikanga issue that should have been handled competently in the first place.

At [79]-[81], the Court concluded the mediator was not prohibited from giving evidence about the allegations made against him, provided the evidence was relevant to the dismissal and the events that gave rise to it. The Court also protected the identities of the mediation parties. That is an important indication that the law is capable of distinguishing between party privacy and scrutiny of mediator conduct.

Why the karakia issue matters

Karakia and tikanga are not decorative extras. They are part of meeting protocol and cultural competence in Aotearoa New Zealand. MBIE's own framework recognises that. So when a mediator argues with a representative about whether there will be a karakia, initially refuses, and only later agrees to learn it and do it on the day, that is a legitimate matter for comment.

Speaking about that kind of conduct does not expose the parties' confidential bargaining. It does not reveal offers, admissions, or the underlying merits of the employment dispute. It speaks to the conduct of a public-facing mediation service and whether it is living up to its own stated standards.

The public interest in saying so

There is a wider point here. Public confidence in mediation is not improved by pretending that every criticism of mediator conduct must be buried under a blanket label of confidentiality. Proper confidentiality protects parties trying to resolve employment disputes. It should not be stretched into a mechanism for shielding mediator conduct from scrutiny where the issue is not the substance of the parties' bargaining, but the mediator's own handling of protocol, tikanga, and respect.

If MBIE expects mediators to know this material, then there is nothing wrong with saying so publicly when a mediator falls short. That is especially so where the parties are not identified and the focus is kept on the mediator's conduct and MBIE's own published standards.

Embedded copy of the framework

My view

MBIE's own framework says mediators should know how to handle tikanga and karakia. In my case, the mediator argued with me, refused to do it, and only later agreed to learn it and do it on the day. On the reasoning in T, especially [16]-[17], [23]-[24], [39], [57]-[61], and [79]-[81], there is a strong basis for saying that criticism of that conduct sits outside the protected core of mediation confidentiality because it is not the parties' substantive bargaining over the employment relationship problem.

That is why I say speaking publicly about it is justified.