Mediation and Respectful Workplace Complaints

Written by Sandy Koop Harder, MBA, CMed, Business Manager and Partner at Facilitated Solutions

Featured in the Spring 2019 Edition of HRmatters

There is often a very real need for parties to repair the damage in their relationship and find a way forward into a more productive working dynamic now that the investigation has concluded.

While I certainly will never argue with this, I can say that these are some of the most difficult cases to mediate. This is particularly true when both parties have made some contribution to the problematic dynamics that exist between them. And, in my experience, this is nearly always the case – that both parties own some (though not necessarily equal) contribution for the challenges in their relationship.

Mediating post-investigation cases are particularly difficult for several reasons:

Positional re-entrenchment
A workplace investigation is typically a fact-finding process – its purpose is to determine the objective “what happened” in a situation and to ascertain whether a specific complaint is founded in truth. Part of the challenge is that human relationships are complicated and, especially in the case of a long-standing history, have layers of “truth” to them. Well-meaning investigation processes can unintentionally reinforce parties' fixed ideas about themselves and the other person and thereby fail to bridge the chasm between them.

In the case of a determination of breach of policy, I have seen how a vindicating outcome can entrench feelings of self-righteousness and zero personal contribution for the complainant (“See, it’s true: it’s all the other person’s fault!”) while placing blame on the respondent can underscore feelings of his/her defensiveness, victimization and/or shame (“I don’t deserve all the blame here! No one cares about the context of what happened!”).

I’ve also seen this dynamic mirrored in the case of a determination of no breach of policy: exoneration of the respondent can cement feelings of self-righteousness and zero personal contribution (“See? This is evidence that I did nothing wrong!”) and the dismissal of the complainant’s concerns can reinforce feelings of defensiveness, victimization and/or isolation (“No one believes me. My concerns are not being taken seriously! There is no accountability here!”).

Helping parties have a dialogue about their relationship tensions when either of these scenarios is their starting place is difficult because they will often struggle to engage from an open/listening/learning posture. Often, because of the official determination, that door isn’t even open a crack; it’s tight-shut and locked down. A small opening is often all that’s needed to start a productive dialogue. Without it, the conversation may not get very far.

Process injury
Sometimes, the processes that are intended to protect people can unintentionally inflict further harm. In my experience, the investigation process can be dissatisfying for at least one, and sometimes both, parties. They can be left with feelings that their concerns have been dismissed or that they have been unjustly accused. Or both. Investigations often require extensive fact-finding interviews with close colleagues of the primary parties. This often leaves people feeling like their friends and coworkers are taking sides and drawing lines in the sand. And then there’s the chatter.

In cases that come to mediation after an investigation finding, parties often have a need to not only recover from the “incident”/negative history they share but also from the investigation process itself. This creates an additional layer of complexity when, quite frankly, the conflict between the parties is plenty complex enough.

Policy rigidity
Labour/employment laws and respectful workplace policies exist for good reason. They aim to create and support healthy, dynamic and thriving environments and to protect people from bullying, harassment and disrespectful behaviours at work. Many managers and HR professionals feel the need to follow policy in a prescribed and by-the-book kind of way in order to protect the vulnerable. However, building in an appropriate amount of flexibility into your policies can allow for wisdom to enter the process. Dogged implementation of policy at the expense of exploring viable, more collaborative options can get in the way of productive and positive outcomes. Policy rigidity can leave parties feeling powerless to affect their situation and remove the incentives to meaningfully engage in a collaborative process.

I recently mediated a case where the HR policy prescribed a “letter on the file” for the person found in breach of policy. In this situation, both parties agreed that the matter was resolved through mediation and that punitive measures were no longer necessary or meaningful. The complainant asked to withdraw the complaint and the subsequent consequences of the formal investigation. The HR manager, however, felt bound by the policy and was unable to flex the rules. The discipline letter remained on file. This certainly soured the whole process including the relationship progress for these parties, especially for the respondent. 

Consider the following:

1. Revise your policies to include the expectation of exploring mediation early in the process, ideally before a formal investigation process is initiated. Build some flexibility into your policies to allow for the possibility of interpersonal resolution in lieu of punitive consequences. On a very practical level, mediation can save you money (especially when it is engaged proactively/early in the conflict) including mitigating the costs of stress and sick leaves and/or disruptive and lengthy investigation processes.
   
   
2. Pause the investigation process and wait for the outcome of a mediated conversation. Ofttimes, the outcome of a facilitated process changes things for the parties and a formal investigation or additional discipline may no longer be meaningful or appropriate. You can always reinitiate a formal investigation if the parties are unable to find a way forward through a collaborative process.
   
   
3. Remember the team’s needs following a formal investigation process. Relationships don’t exist in a vacuum. The whole department is often affected when a respectful workplace complaint is filed. In my experience, too often when an investigation process has been completed, HR leaders and managers feel compelled to close the door on it and “move forward”, failing to take into account broader impacts including what the group, as a whole, needs in order to recover and resume productive teamwork.
   
   
4. Mediation is not always appropriate – but it often is. Sometimes managers and HR leaders believe (or their policies dictate) that some types of behaviours or dynamics (or the severity of certain behaviours or dynamics) deem the situation inappropriate for mediation. In extreme cases, this can certainly be true. However, you may be surprised how helpful mediation can be even in the most difficult of scenarios. Trust the mediators to help you assess whether the situation is “mediate-able” or not. Don’t discount it as an option before you even properly explore it.