From Battleground to Common Ground: How Tikanga Principles Can Transform Workplace Mediation
Emma Baines Solicitor | Thu Jul 02 2026
From Battleground to Common Ground: How Tikanga Principles Can Transform Workplace Mediation
When the Supreme Court delivered its decision in Ellis v R in 2022, it marked one of the most significant moments in New Zealand's legal history.
While the case brought the decades-long prosecution of Peter Ellis to an end, its significance reached far beyond one individual. The Court confirmed that tikanga Māori forms part of the common law of Aotearoa New Zealand, recognising that our legal system is not fixed in time but continues to evolve alongside the society it serves.
The Ellis decision reminds us that even long-established legal systems should never become complacent. Justice requires continual reflection, learning and improvement.
That same journey of evolution can be seen in the way New Zealand approaches workplace disputes.
The old battleground
For many years employment disputes were largely adversarial.
Whether under the Industrial Relations Act 1973 or the Employment Contracts Act 1991, disagreements often became legal battles where one party's success came at the expense of the other. The focus was on proving who was right, who was wrong and enforcing legal rights through formal processes.
Unfortunately, this approach often left employment relationships beyond repair. Even where a legal outcome was achieved, it rarely restored trust or repaired the damage that had been done.
A new direction
Everything changed with the introduction of the Employment Relations Act 2000.
Rather than focusing solely on contractual rights, the Act recognised that healthy employment relationships are built on good faith. It shifted the emphasis from litigation to problem-solving and established mediation as the primary method for resolving workplace disputes.
Today, mediation sits at the heart of New Zealand's employment relations framework. Through the Ministry of Business, Innovation and Employment (MBIE), parties have access to professional mediation services that are free, accessible and designed to help people resolve disputes themselves before resorting to formal legal proceedings.
It was a deliberate shift away from confrontation and towards collaboration.
Why mediation works
The success of mediation rests on several key principles.
Confidentiality
Mediation takes place on a "without prejudice" basis, allowing parties to speak openly without fear that their discussions will later be used against them in court. This encourages honest conversations and genuine exploration of possible solutions.
Flexibility
Unlike court proceedings, mediation is not bound by rigid rules. Every dispute is different, and mediators have the flexibility to tailor the process to suit the circumstances. Meetings may be formal or informal, joint or separate, depending on what will best assist the parties.
Accessibility
MBIE's mediation service is available throughout New Zealand at no cost. Whether conducted in person, online or by telephone, mediation is designed to be accessible regardless of where people live.
Finality
When agreement is reached, it can be recorded in a Record of Settlement under the Employment Relations Act. Once signed by an MBIE mediator, the agreement becomes final, binding and enforceable, providing certainty for everyone involved.
But can we do even better?
There is no doubt that mediation has transformed employment dispute resolution.
More than 13,900 Records of Settlement were signed during 2024/25, demonstrating just how central mediation has become in resolving workplace conflict.
Yet numbers alone do not tell the whole story.
The real question is not simply whether disputes are being settled, but whether they are being resolved in a way that restores relationships, preserves dignity and minimises ongoing harm.
That is where tikanga Māori offers valuable guidance.
Bringing tikanga into mediation
Tikanga Māori is far more than a cultural addition to an existing legal process. It is a distinct legal and philosophical framework centred on restoring balance, maintaining relationships and achieving harmony.
Many of its principles align naturally with the objectives of the Employment Relations Act.
Concepts such as hohou i te rongo (making peace), kanohi ki te kanohi (face-to-face engagement), manaakitanga (showing respect and care) and whanaungatanga (valuing relationships) encourage parties to move beyond simply negotiating a settlement.
Instead, they ask a deeper question:
How can the harm that has occurred be acknowledged and, where possible, repaired?
In practice, this may involve beginning a mediation with a karakia or mihi whakatau, allowing participants to speak in te reo Māori where appropriate, ensuring the right people are present, and creating an environment where every person's mana is recognised and respected.
Importantly, this is not about replacing existing mediation processes. It is about strengthening them by recognising that people are more than legal positions—they are individuals with relationships, identities and communities.
A more restorative approach
Applying tikanga principles encourages parties to focus less on "winning" and more on understanding.
Rather than debating every legal point, participants are encouraged to listen, acknowledge the impact of the dispute and consider what is needed to restore dignity and move forward.
Financial settlement may still form part of the outcome, but it is no longer the sole measure of success.
Success becomes an outcome where people feel heard, respected and able to leave the process with their dignity intact.
Even where the employment relationship cannot continue, the way it ends matters.
A restorative approach also recognises that support after mediation can be just as important as the mediation itself, helping individuals transition positively and reducing unnecessary harm.
Looking ahead
The recognition of tikanga Māori within New Zealand's common law represents another step in the ongoing evolution of our justice system.
Employment mediation has already taken us a long way from the adversarial battles of the past. By embracing tikanga principles, we have an opportunity to take the next step—creating dispute resolution processes that are not only legally sound, but also compassionate, restorative and relationship-focused.
After all, the best resolutions are not simply those that end disputes.
They are the ones that help people move forward.
At Wakefields Lawyers, we understand that workplace disputes can be challenging, both professionally and personally. Whether you're an employer navigating a difficult employment issue or an employee seeking guidance, our experienced team is here to help.
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