by Ashley Lattal
(originally published in the ADR Institute of Ontario Fall 2015 Newsletter)
Many organizations rely upon formal complaints and workplace investigations to respond to conflict to the exclusion of more proactive processes, such as workplace mediation, which may prevent conflict from escalating to the point where a formal investigation is required. Certainly, well-executed investigations are a necessary and important method for dealing with a variety of employee complaints, particularly serious complaints of harassment and discrimination. However, while they can provide useful information about possible sources of conflict, in isolation they cannot be relied upon to resolve conflict.
In our investigation practice, we often see what really amounts to poor communication habits, personality conflicts, and/or disagreement over management style couched in terms of harassment and discrimination complaints. These are rarely bad faith complaints; rather, they arise from conflict that has festered and reached a point where the complainant genuinely finds interactions with the respondent to be harassing. In many of these cases, management is often largely unaware of the underlying conflict revealed in our reports and/or surprised by its depth and extent. Further, many complainants who have wanted to address conflict earlier report feeling uncertain how to proceed and/or intimidated by the formality and adversarial nature of the investigation process, and therefore, do nothing for some period of time until they reach their breaking point and make a formal complaint. In light of these observations from our work, organizations would be well served to enhance their conflict management systems by incorporating, publicizing and utilizing processes better equipped to resolve conflict before it becomes entrenched. While many options exist, this article focuses on the benefits of workplace mediation.
Workplace Mediation as an Early Conflict Reduction Process
Some organizations will require more comprehensive approaches to address systemic sources of conflict, but more targeted approaches like mediation may be useful for addressing many of the sources of conflict that we regularly see in our practice, as described above. Workplace mediation can be ideal to address these kinds of issues, as well as relatively minor incidents, as they so often arise from misunderstandings (e.g., one party finding certain words or tone to be offensive, the other finding it to be funny or necessary to control employees). When done well, mediation creates a safe place for employees to address their issues with the assistance of a neutral third party and to create useful, mutually agreeable solutions. Mediation is generally less costly than investigations (at least when using an external investigator) and less disruptive to the workplace. It may also appeal to those employees uncomfortable with the implications of making a formal complaint. While mediation alone might not resolve every conflict, its regular use may encourage a culture shift whereby management of conflict, rather than avoidance, becomes the norm.
Not withstanding the potential benefits, many employers are not utilizing workplace mediation at all, or are using it only following an investigation. Post-investigation mediation can be helpful in restoring relationships and moving the parties forward, but it will generally be more difficult, as investigations often add another layer to existing conflict, given the polarizing impact they can have.
Implementing Mediation into Workplace Processes
If an organization is interested in increasing its use of workplace mediation (or other conflict resolution processes), it must take steps to incorporate mediation into its conflict management system and educate employees so that it is perceived to be a legitimate method of conflict resolution. As a starting point, an organization may need to amend its policies and procedures to encourage the use of mediation and then circulate any such amendments to employees in order that they understand that it is an available option to address certain kinds of conflict. Managers should also be encouraged to communicate with employees to have a pulse on departmental sources of conflict and to encourage options like mediation where appropriate. In organizations where employees are likely to be reluctant to speak openly with management, an organizational ombudsperson or hotline can be useful to vet employee concerns and suggest processes like mediation.
Internal mediators should have appropriate training to ensure that they understand the process and its goals, have the tools to effectively facilitate negotiation between the parties, and can maintain control of the process. Untrained mediators can make conflict worse, and may lead employees to lose faith in this process, rendering it useless. Indeed, we once investigated a case where a well-intended mediation led to a formal complaint of harassment and discrimination, as it escalated conflict and the complainant felt the internal mediator was biased. External mediators can be a better choice where risk of bias or lack of trust may be an issue.
Of course, organizations must also understand that mediation is not always appropriate, particularly where the power imbalance between the parties is too great, where the individuals are unlikely to cooperate in the mediation process, and/or where the conflict is so entrenched or stakes are so high that parties are unlikely to respond without an investigation taking place. Whether an investigation is required based on the company’s knowledge of any given conflict will depend upon the particular circumstances, determined in conjunction with legal advice.
There are many additional tools that may complement mediation in reducing certain kinds of conflict and complaints, including management skills training, conflict coaching, employee training on the legal meaning of harassment and discrimination, and workplace assessments. Investigations cannot always be avoided and are often critical in addressing certain kinds of conflict, and employee misconduct. However, with more proactive conflict management processes in place, an organization may not only reduce common sources of workplace conflict, but may also become a more harmonious, productive place to work.