Mediating workplace complaints prior to investigations

A trend is emerging for mediation to take place prior to conducting a misconduct investigation. Over the last decade in Canada, administrative investigations have become increasingly common tools to respond to workplace and other complaints about harassment, bullying, and other inappropriate behaviour, either by choice or as a legislated requirement. With that rise in investigations has come a realization that investigations can be costly ($10,000 or more), stressful, and potentially divisive for an organization (pitting cliques and individuals against one another). An investigation report may answer key factual and/or legal questions, but may not resolve, and may worsen the underlying conflict.

In response, mediation is being attempted more, before commencing an investigation. But what is different about mediating in this pre-investigation context, when serious allegations or complaints of inappropriate behaviour have been made but little information has been shared?

Imagine for example a complaint by one or more employees alleging years of harassment and bullying against a manager who sees themself as “tough but fair.” An early effort at mediation may be suggested by Human Resources.

What is different about mediating prior to an investigation?

Certain dynamics about mediating in the shadow of a potential investigation bear mention, differentiating such cases somewhat from other mediations and creating challenges. Some differences arise from the nature and severity of the issues:

• There are often significant allegations of misbehaviour (supported or not), which can create ill feelings or downright hostility between the parties.
• Allegations in such cases are highly personal and sensitive on all sides, meaning the parties are likely more defensive and on edge. Strong emotions can be expected.
• Complainants who have suffered trauma may be emotionally and psychologically vulnerable. A trauma-informed approach may be advisable, and care must be taken to do no further harm.
• The consequences of an investigation could be severe for the respondent, which means they will be more defensive in the mediation, but also may see more reason to settle.

Some arise from the complaint management process itself:

• Circumstances may require that an investigation takes place for public policy reasons, meaning one or more parties may see less reason to settle. Further, parties may all be aware that if the matter does not resolve, an investigation is the likely the next step.
• At this early stage, parties may be unrepresented, and yet be facing important labour relations or legal issues.
• Complainants may be unwilling to speak directly to the respondent, and may wish to limit information shared. In contrast, the respondent (or their counsel) may insist on full disclosure to know the case against them. How far do rules of procedural fairness apply to mediations? Does the process address disclosure, confidentiality and privacy issues?
• Disclosure of the allegations and underlying facts may be either non-existent or minimal; on the other hand, there may have been an overly high degree of disclosure of allegations (but without supporting facts), such that the parties have become entrenched, emotionally wounded and highly positional.
• Complaint management rules or procedures may require certain steps to be taken, and impose rigid timelines.

Some issues flow from the organizational and relationship dynamics at play:

• In the early stages of a complaint, there are often concerns that people have already been breaching confidentiality by spreading rumours or narratives within the organization.
• Cliques of supporters may actively be forming around the central players.

Advantages of mediating prior to investigation

Mediating prior to an investigation has many distinct advantages:

• Since sanctions – and often the allegations – have not crystallized, there is great room for problem-solving and resolution. Positions may be less crystallized. Many forms of potential relationship damage can be mitigated or avoided.
• Investigations are often zero-sum games: someone wins, someone loses. Mediated solutions allow parties to focus on the real problems rather than just the rights-based answers.
• A mediated solution can be confidential, which parties usually want; if a more public resolution is demanded by a party, the framing of that message can still be negotiated.
• Investigations are expensive and time-consuming and can prolong a stressful situation; mediated resolutions can save significant time and costs for the employer (and parties).
• Mediation may prevent/minimize further damage to relationships and the value of the relationships can encourage creative problem-solving.
• The opportunity to avoid serious negative consequences for all parties encourages good faith negotiation.
• The parties may feel a greater sense of control over their own destiny.

Disadvantages of mediating prior to investigation

There are also disadvantages to mediating early, including:

• Complainants may focus on demonstrating that they are victims of wrongdoing; respondents may focus on defending themselves; the parties may overly focus on proving the other side wrong instead of resolution.
• A tendency to persuade the mediator as if they were an arbitrator who decides.
• A lack of clarity on Best Alternative To a Negotiated Agreement, or BATNA (each side may believe an investigation will vindicate them).
• One or more parties may be focused on obtaining objective (and perhaps public) validation of their view.
• Hardened positions and strong emotions on all sides, which may override rational negotiation.
• Procedural fairness concerns around a lack of disclosure about the allegations.
• The concern that damaged relationships can damage the efficacy of negotiations.
• It may be hard to identify all of the relevant parties at this early stage. To resolve an issue, all relevant players should ideally be at the table, and a complaint may not capture all of those initially. What role should HR or other staff play, for example?

Adapting the process to manage challenges

To manage the challenges identified, a number of strategies can be used by the mediator.

1. The parties’ focus
   1. Whether retained to mediate or investigate, ask the retaining and other parties early on – do you want to determine sanctions or fix a problem? If mediation is selected, is it voluntary for all key parties?
   2. Analyze the available information to assess whether the issues are resolvable.
   3. Identify parties’ interests early and focus them on their primary goals.
   4. Help parties see the connections between their goals and the relationships at play. Ask them: “How should you manage the relationship and communication in light of those goals?”
2. Define the relevant parties
   Early on, assess who the relevant parties are that need to be involved for a practical resolution. It may be wise to involve more persons than just the parties in conflict (a manager or HR official, for example). Get input from all relevant parties. Prepare potentially relevant players for the fact that they may need to become involved if the circumstances require their engagement (e.g., management may need to approve certain steps/actions discussed by the parties).
3. Clarify your role up front.
   1. “I am a mediator, not a judge, arbitrator, or investigator.”
   2. Focus the parties on the future and a problem-solving approach, and refocus them as needed.
4. Disclosure
   1. In preliminary sessions, facilitate the negotiation of disclosure issues. What information do you each need to be in a position to negotiate meaningfully? It may help to negotiate the process before negotiating the substance.
   2. With parties reluctant to share relevant information, review the consequences of disclosing/not disclosing. Problem-solve how to share information comfortably but meaningfully.
   3. Use role reversal to show the importance of meaningful disclosure and the importance of perceived fairness. “How would you feel if someone had accused you of X, and you were not given any details of what you were said to have done?”
5. Confidentiality
   1. Remind parties immediately and firmly of the need for confidentiality from the outset of the mediation process forward. Reinforce it again at the end.
   2. Clarify what happens to the information used in the mediation.
   3. Remind parties that, if an agreement is reached, they can address the confidentiality (or lack thereof) of the result as part of their settlement agreement. Facilitate those negotiations when you get there.
6. Party emotions
   1. Use role reversal to help the parties see one another’s perspectives (about the substantive issues and about the process).
   2. Use pre-mediation caucuses to build trust and to gauge party perspectives and manage their approach to the communication during the mediation process. Tell them, e.g.: “You are going to hear things you don’t want to hear. Take it once. After that I will intervene to prevent a repeat of the negative accusations. Focus on the goals you have identified. If you want to resolve this, they need to feel heard.”
   3. Remind the parties of key ground rules for parties (the golden rule approach – treat others as you would like to be treated), and why it is in their interest to adhere to them (respected parties are more likely to say yes).
   4. Use a trauma-informed approach and give the traumatized parties control over their role in the process. Make parties feel heard, understood, and comfortable with the process. Avoid doing further harm. Process choices may include how and what information is shared, whether the parties speak directly to one another, and under what conditions, etc. Consult the parties on key process choices.
7. Understanding BATNA
   1. Clarify from the applicable rules and parties, what are the likely next steps if the matter does not resolve.
   2. During the pre-mediation caucus with each party, help them assess the realistic consequences of not resolving the matter. What will an investigation feel like?
   3. Reality-test the possible alternatives with the parties (e.g., ask: “What happens if this becomes public… What happens to your reputation?” etc.). Gauge their reactions.

Conclusions

Early mediation may be significantly more beneficial to the parties than enduring an investigation. Similarly, for management, a negotiated resolution is usually better for employee morale.

Investigations can be lengthy, expensive and highly disruptive and rarely solve the underlying issues. Mediation on the other hand is generally fast, less costly and can foster workplace relationships. An investigation can still be done if the mediation is unsuccessful. It is essential that complaints managers (HR) and dispute resolution practitioners consider and explore all of the options that are available to deal with an allegation of misconduct.

Overall, the value of mediating such cases early will often outweigh the potential challenges. And the challenges that exist can be managed by adapting the mediation process accordingly as noted above. Recognize the unique parameters and difficulties of mediating such cases, and manage the process and the parties appropriately.

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Paul Godin is Principal at Katalyst Resolutions, Steven Gaon is President, ADR Ottawa Inc. and David Bennett is a Chartered Mediator/ Investigator/ Arbitrator.