Why Forced Mediations are Doomed to Fail

Vince Scopelliti - Wednesday, May 02, 2018

Mediation can offer effective resolution of workplace disputes. It's a fair process that allows parties to be heard and encourages them to find a resolution both sides are satisfied with. 

Mediation should only be used when parties are willing to discuss their differences. In the case of a bullying complaint, an investigation is required in the first instance, to determine whether there is an active grievance or complaint afoot, causing one of the parties to feel unsafe in the workplace. 

Forcing an unwilling employee to the mediation table can lead to resentment and even legal action. 

How does mediation work?

In mediation, a third party facilitates an open discussion between two parties to help settle a dispute rather than going to court. Both sides are encouraged to reach an acceptable compromise. For employers, the idea is to resolve a dispute quickly and economically. 

while there are pros and cons for mediation, one positive is that a verdict is never 'handed down' but rather, the parties come to the decision together. It's an empowering process, giving the parties input into the outcome. 

The advantage of mediation is that disputes can be reexamined and reframed in order to find the appropriate solution. It's a flexible process that can be tailored to the needs of the players involved. 

A key aspect though, is that all parties need to act in good faith, and be open to discussion and negotiation. If mediation is forced upon an employee, they are likely to feel that the process isn't fair, leading to resentment, a difficult negotiation and disagreement with the outcome. 

Can an employer compel an employee to attend mediation?

While an employer can enforce mediation, and take disciplinary action if an employee fails to attend, there must be grounds to do so, and these grounds must be established. Without grounds, an employer may be left open to a claim of adverse action or victimisation. 

It's important in these situations, however, to carefully consider the reasons why the employee may not wish to be part of mediation. For example, they may fear a power imbalance or bias against them or may feel unsafe in their workplace, due to a bullying complaint which has not been addressed. 

Outlining the process: the role of the mediator

A mediator is appointed to facilitate the process. The mediator does not provide legal advice, nor do they offer legal counsel. A neutral third party, the mediator's role is not to make a decision, but to encourage the parties to come to their own, mutually agreed-upon resolution. 

In most cases, the mediator will make an opening statement and then give each party the opportunity to do the same. During this time, each party will share why they have agreed to the mediation and what they would like to achieve from it. This is not the time to air grievances. 

Just as a meeting is kept on track with an agenda, it's best to have a mediation meeting framework in place to ensure all steps are taken care of and all issues are dealt with accordingly. The agenda should be clearly spelt out and followed. The mediator will help determine what should and shouldn't be discussed and it's the mediator's role to keep the discussion on track. 

During the mediation, private sessions may also be helpful so parties can refresh and refuel. The mediator will meet with the individual parties one at a time to discuss how they are feeling. This process may be repeated if necessary. 

Once each agenda item has been addressed and discussed, a decision will be mutually agreed upon. The mediator will review, finalise and capture the agreement in writing. 

Approaching mediation

Asking an employee to mediate their grievance is a reasonable request - after all, restoring the peace between employees is important for business, and ensuring employees relations are happy and healthy is paramount. 

However, mediation will only work if the parties truly want to mediate. This means they want to come to an agreement together, and there's no possible reason why one party may be afraid or uncomfortable during the process. 

Forced mediation is not likely to be effective, as it is one-sided. 

When expert assistance is required

If the parties cannot find agreement on all agenda items, or there are behavioural concerns, it may be necessary to explore possible resolution options with an experienced external workplace mediator. 

If you need some support in how to conduct a mediation, need to engage a mediator, or would like to resolve a workplace conflict, contact WISE

How to Improve Workplace Harmony

Vince Scopelliti - Wednesday, March 28, 2018

Maintaining workplace harmony should be a key focus of every organisation. Conflict in the workplace can lead to behaviours such as bullying, harassment and discrimination. Staff can lack motivation, fail to work as a team and be generally unhappy. 

So how can employers and staff deal with conflict, and encourage staff to work together to promote harmony in the workplace? 

Common causes of workplace conflict

Organisational or operational changes can cause employees stress and discomfort. These can include changes in management, procedures, duties or position descriptions, redundancies, staff changes and particularly a restructure. The increased stress and pressure on employees may be reflected by an increase in complaints received in the workplace.

The following factors also increase the likelihood of disharmony in the office environment.

  • A lack of communication, whether between co-workers or between management and staff;
  • A failure to share a vision, or a misunderstanding of what the business' goals or team's core focus is;
  • Mistrust or suspicion;
  • Insufficient leadership - or at the other extreme, micromanagement. 

how to prevent DISHARMONY turning the workplace toxic

It is important for employers to tackle any potential cultural issues straightaway - if tensions are left to fester, small, easily solved problems are likely to become much harder to deal with. 

Tips to avoid conflict and disharmony include:

  • Clearly communicating a zero tolerance attitude towards bullying, victimisation, discrimination and other negative behaviours;
  • Introducing clear workplace policies setting out expected standards of behaviour from all employees, and ensuring that these are well-communicated, easily accessible and complied with by everybody in the organisation, including senior management;
  •  Applying change management principles to any necessary changes to operational, procedural or structural matters;
  • Encouraging 'buy-in' from employees by creating common goals for all staff in the organisation. This should motivate everybody to work together;
  • Making your organisation a great place to work and an employer of choice - in particular by encouraging staff to have a healthy work-life balance;
  • Holding employees accountable for their work and rewarding them appropriately for good performance;
  • Training managers in conflict resolution, so they can step in early and deal with issues;
  • Hiring new staff based on their cultural fit and their compatibility with organisational values. 

Employees also have a role to play in creating workplace harmony, by doing their jobs to the best of their ability, showing commitment to their work, raising issues when they arise and adhering to workplace policies and procedures.  

what is the role of mediation?

When conflicts do arise, mediation can be an extremely useful tool. It can facilitate a discussion between employees who are in disagreement and find common ground or a compromise to deal with ongoing issues. 

However, mediation should not be used as a band-aid measure to try and resolve ongoing conflicts or when an active grievance is afoot. In this case, prevention by creating a harmonious workplace culture is truly the best cure.

when is an investigation required?

In some cases, workplace conflict and disharmony cannot be dealt with by a mediation process and an investigation is required in the first instance. 

This is particularly appropriate in circumstances where one party has been accused of misconduct or inappropriate behaviour, and the accused is hoping to clear their name. Similarly, if a workplace policy has been breached and there are potential legal or industrial ramifications, an employer is obliged to conduct a thorough investigation. 

Conflict management and workplace mediation can help avoid the disruption and disharmony which workplace conflicts can produce. Should your workplace require assistance in managing workplace disharmony, WISE Workplace provides mediation services and investigation services. Contact us today for an obligation-free discussion and cost estimate.  

Evolving and Moving on from a Workplace Investigation

Vince Scopelliti - Wednesday, February 14, 2018

Most employers are aware of the importance of conducting workplace investigations to deal with complaints or allegations. But what happens after the investigation is over?

There may be a sense of disconnectedness, embarrassment, awkwardness or even anger amongst staff, particularly if disciplinary action has been taken or an employee has left the organisation. 

Although it is no doubt tempting to close the report on a workplace investigation and just move on, there remains a lot of outstanding work to be done before the job is truly over.

The report is finalised, but now what?

There are a number of steps employers can take to ease the way post-investigation. 

These include:

  • Touching base with all parties

The person who was the subject of the investigation would have been notified of any findings and consequences. But it is equally important for employers to touch base with any complainants, whether they are internal, external or on leave, and explain that the process has been finalised. Although exact outcomes may not be disclosed due to privacy or confidentiality reasons, it is important for employers to demonstrate that complaints have been taken seriously and duly investigated. 

  • Requesting constructive feedback

Although it is unlikely to be appropriate to ask the complainant or the respondent to comment on how they thought the investigation was handled, witnesses and other parties engaged in the process can be approached for feedback. This might include whether they felt the investigation process was transparent and fair, whether there is anything else they want to report about the company, and whether they felt there was sufficient communication throughout the process. 

  • Reviewing the actions of key decision-makers

This is a fantastic opportunity to consider the way your key decision-makers have behaved. This includes the quality of their decision-making, the steps taken by them to control the situation, and perhaps their involvement in the initial complaint. It can also provide an opportunity to observe how those in senior management interact with each other, and perhaps encourage changes to the chain of reporting and command.

  • Identifying any systemic or endemic problems

Perhaps this is not the first time a complaint of a similar nature has been made, or the same person's name keeps popping up. Maybe the investigation has identified a shortcoming in procedures or policies in the business. Employers need to identify any systemic issues and implement strategies to deal with them as soon as possible. 

Rebuilding the team post-investigation

Dealing with any uncertainty or disharmony and rebuilding your team is of primary importance. In the aftermath of an investigation, employers need to:

  • Consider whether the complainant and respondent can keep working together. Even if the allegations are not substantiated, it should be assumed that any future working relationship is likely to be strained, if not impossible. Careful consideration should be given to shifting work arrangements, ideally without either party feeling aggrieved by the change. If the parties must continue working together, mediation can help by enabling both parties to air concerns and come up with ground rules. 
  • Offer counselling to all affected parties, whether internal or external
  • Instigate a training program or a refresher course for all staff focusing on the behaviours reviewed in the investigation
  • Facilitate team-building exercises. Team-building exercises can help staff resolve any conflict they may feel, give them an opportunity to get to know each other better and to forge new connections in the wake of an investigation. This can be particularly important if a co-worker has been terminated. 
  • Seek feedback from your employees as to what steps could be taken to improve the workplace culture in general. 

Don't limit the investigative process to a band-aid solution. Once the immediate issue has been addressed, utilise the learnings to strengthen your team going forward. 

If you need effective resolution of workplace disputes after an investigation, WISE Workplace has a number of qualified and experienced mediators who can help your workers to resolve any issues post-investigation.