How Do I Know Whether to Mediate or Investigate?

- Tuesday, November 11, 2014
mediate or investigate?
How Do I Know Whether to Mediate or Investigate?

The number and type of differing workplace problems is certainly considerable. It is no surprise then that the mechanisms for tackling these various grievances and disputes are similarly numerous. One common question that managers and workplace consultants face is how to choose between differing approaches to dispute resolution. In this article, we take the example of mediation versus investigation, and consider some of the variables that might come into play when deciding on the right path. 

Mediate the misunderstandings 

Often when a mediator (internal or external) is briefed about a problem between colleagues, the key term that crops up is tension. Roles, workspaces, workload division, and different communication styles are just some of the flash points that can cause dysfunction between colleagues and across work sites. The issue might involve two or more people, and more often than not there is roughly equal power between those involved. Mediation is often the go-to strategy for such workplace issues. Mediation aims to identify core problems, enhance understanding, and facilitate workable solutions for the participants to try. As a mediator, it is not within your scope to mandate any set outcomes. Yet it can certainly be helpful to use your knowledge of the situation and the workplace to make suggestions. Ideally though, the parties will have returned to a point of healthier communication and will be able to formulate outcomes and goals that are mutually beneficial. 

Investigate the irregularities 

On the other hand, a workplace investigation is based upon a different set of premises. Unlike mediation – which can often be about simmering disagreements – an investigation will most likely be appropriate where something has already allegedly gone wrong. Unlawful behaviour such as bullying or sexual harassment might have occurred, or suspicions might have started to mount regarding possible fraudulent activity. Rather than seeking to dispel relational and operational dysfunction such as would occur in mediation, the workplace investigator is often utilised to get to the bottom of potential wrongdoing. One or multiple staff members might be examined, depending upon the activity under investigation. Unlike mediation, only one person would attend an interview with the investigator at a time. Confidentiality is extremely important and investigators must be vigilant in ensuring procedural fairness at all times. 

What to watch in mediation

Mediation can be unsuitable in certain circumstances. For example, if an allegation of sexual harassment has been made by an administrative assistant against her line manager, then mediation would not be the appropriate forum for dispute resolution. There is a clear power differential in terms of the parties’ relative positions in the organisation. The openness and mutual contribution required for successful mediation is absent in this respect. Further, considering the alleged unlawful behaviour that has occurred in this instance, the employer has significant duties around the safety of the administrator, investigation of the allegations, and a duty to prevent any further harm or injury via re-traumatisation. Investigation would almost certainly be a preferable course of action. 

Unsuitable investigations

 A workplace investigation can also be an unsuitable option in certain circumstances. Take the situation where bickering and antagonism is occurring within a team, with a danger of escalating into workplace bullying. To start an investigation complete with closed-door interviews and confidentiality requirements would do little to dampen the team’s difficulties, and might in fact serve to inflame rumours and enmity. And if one person is questioned more than others, this might raise the very ire that the employer is hoping to dispel. In this case, an investigation is simply too heavy-handed an approach. Mediation between the key protagonists – facilitated in a way that allows feelings to be vented, issues to be examined, and is aimed at mutually agreeable solutions – is almost certainly the preferable approach in this instance. 

Surveying the scene

 In deciding whether mediation or an investigation will be suitable, it is important to take stock of the situation and the nature of the specific workplace problem. If it appears that wrongdoing has occurred and facts need to be examined and collated, a workplace investigation will often be the best choice. Where equal parties need a space to air grievances and to work towards solutions, mediation provides an appropriate space within which such conflict can be resolved. Always take enough time to accurately assess the scene, to ensure that your choice of approach is the best fit for that circumstance.

WISE Workplace provides certified mediators and fully licenced investigators to handle a range of workplace conflicts and complaints.

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