Mediating Workplace Complaints Prior to Investigations

 

By Paul Godin, C.Med, Steven Gaon, C.Med, and David Bennett, C.Med

With the increasing use of investigations for workplace and other complaints, the high cost of such investigations has driven a new demand for pre-investigation attempts at mediation. The advantages and challenges of mediating such cases prior to commencing investigations are somewhat unique. We explore a variety of techniques to capture the advantages while minimizing challenges, and identify a variety of options for resolving such disputes early and at lower overall cost.

Investigations are increasingly used for dealing with workplace and other complaints about harassment and other inappropriate behaviour. Some workplaces have formalized investigation processes, either voluntarily or because of a legislated requirement like Bill C-65.

Unfortunately, investigations can be very costly ($10,000 or much more), stressful, and potentially divisive (pitting camps against one another in the organization). While an investigation can answer key factual and/or legal questions, it rarely resolves the conflict, and can worsen the relationships at play.

Recently, we are increasingly seeing mediation being attempted before an investigation is started, instead of at later stages in the conflict/proceedings. As an example, an employee may file a complaint alleging harassment and bullying against a manager with 10 years of experience, who is known as being “demanding”. An early effort at mediation may be suggested by Human Resources instead of immediately starting an investigation.

These pre-investigation mediations are different, however. Serious allegations or complaints of misconduct have been made, but very little factual information has been shared and emotions are running very high.

Advantages of Mediating Prior to Investigation

Mediating prior to an investigation has multiple advantages for parties and the organization:

• The costs, anxiety, and stress of an investigation and/or hearing can be avoided.
• Mediation is flexible enough to incorporate other parties and issues if they become relevant to the conflict. Others with concerns may be encouraged to come forward.
• The communication between parties can be clearer and more effective if mediated well.
• The value and importance of relationships at play can promote resolution and better minimize relationship damage.
• The parties may feel a greater sense of control over their own destiny.

On the problem-solving side:

• Discipline has not likely been decided, so parties will be less locked into positions leaving more room for problem-solving and resolutions that can meet parties’ interests (like saving face).
• Solutions can be more creative and parties can focus on the real problems rather than just the rights-based answers.
• A mediated solution can be confidential, which may be valuable to all parties.
• Even if a more public resolution is demanded/required, the form and timing of that message can still be negotiated.
• The chance to avoid serious negative consequences for all parties encourages good faith negotiation.

Disadvantages of Mediating Prior to Investigation

Disadvantages to mediating early include:

• A lack of ripeness because:
  • disclosure of key information and evidence has not occurred yet;
  • parties have not digested the risks yet (and don’t understand their BATNA); and
  • parties may not have gotten legal advice so may be positional;
• A high degree of defensiveness to allegations.
• Confusing the mediator role with that of an investigator or decision-maker.
• Parties who lock in on having an investigation validate them.
• Hardened positions on all sides.
• Very strong emotions on all sides, which may make rational negotiation difficult.
• Procedural fairness concerns around a lack of disclosure about the allegations.
• Arguments about information use and confidentiality.
• Difficulty identifying all of the relevant parties and their role at this early stage.

Challenges in Mediating Prior to an Investigation

Mediating in the shadow of a potential investigation also creates challenges specific to these mediations:

• Parties likely know that if the matter does not resolve, an investigation is likely to occur, and may indeed be necessary anyway for policy reasons.
• The consequences of an investigation could be severe for the respondent (job and reputation), making defensive reactions likely, but also creating an incentive to settle.
• Strong emotions should be expected. Complainants may have suffered serious emotional and psychological trauma, and will be on edge. A trauma-informed approach is advisable, and care must be taken to do no further harm.
• Disclosure may be very limited and complainants may refuse to communicate or share information with the respondent.
• Respondents (and counsel) may insist on receiving particulars of allegations and details of witnesses. Do rules of procedural fairness apply to mediations? Legally, perhaps not, but practically, a resolution may be impossible without sufficient disclosure.
• One or more parties may be unrepresented, despite the severe potential consequences.
• Applicable complaints handling rules may not have contemplated mediation.
• Increasingly, in our social media age, people may have already begun breaching confidentiality by spreading rumors or narratives within the organization. Some parties may be trying to gather support.

Managing Pre-Investigation Challenges

Mediators can use various strategies to manage these challenges while adding significant value.

1. The Parties’ Focus
   1. Ask the retaining and other parties early on- is your goal to determine sanctions or fix a problem? Is the participation in mediation voluntary?
   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 how their goals and the relationships at play are connected. “How should you manage the relationship and communication in light of your goals?”

2. Define the Relevant Parties

Early on, assess who the relevant parties are that need to be involved for a practical resolution. What role should HR or management play? Where appropriate, get input from the identified parties.

3. Clarify Your Role up Front

“I am a mediator, not a judge, arbitrator, or investigator.” Explain and clarify.

4. Disclosure
   1. In preliminary sessions, mediate the disclosure of information- What do you each need to be in a position to negotiate. Negotiate the process to create comfort before negotiating the substantive issues.
   2. If parties resist sharing relevant information, review the consequences of disclosing versus not disclosing.
   3. Role reversals can emphasize the importance of meaningful disclosure and procedural fairness.

5. Confidentiality
   1. Emphasize the need for confidentiality early and often.
   2. Be clear what happens to the information used in the mediation.
   3. Remind parties they can negotiate and manage confidentiality issues as part of their settlement agreement.

6. Party Emotions
   1. Role reversals help parties see one another’s perspectives and may calm the table.
   2. Pre-mediation caucuses allow us to clarify party perspectives, and manage their approach to the communication and relationships (e.g., “They may attack your integrity. Remember the goals you identified. If you want to resolve this, slapping back will not get you there.”)
   3. Remind them that people who feel respected and heard are more likely to say yes.
   4. Use a trauma-informed approach and give the traumatized parties input into and control over their role in the process. Adapt as needed (support person, time outs, use of caucuses, etc.)

7. Understanding BATNA
   1. During the pre-mediation caucus, help each party identify and assess what happens if the matter does not resolve. What are the realistic consequences of walking away without a resolution?
   2. Reality-test the possible alternatives with the parties (e.g., what happens to your career, your reputation? What might the other party or the company do?)

Options for Resolution

One of the real values of mediating prior to an investigation and disciplinary sanction imposition is that the field of possible resolutions is very broad. Depending on the circumstances parties can consider a wide variety of ideas:

1. Restructuring jobs, locations, personnel, etc.;
2. What message is communicated to others or the public (what, how, when);
3. Rehabilitation ideas;
4. Systemic changes identified;
5. Training, monitoring, coaching;
6. Protective and supportive measures for complainants;
7. Various discipline options;
8. And many more.

Conclusions

This new niche for mediation is likely to grow, but has needs specific to the context.  Because of the raw emotions and trauma in play, and the severity of the consequences at stake, care must be taken to approach the process thoughtfully.

Good mediators will adjust their strategies and process to manage the challenges noted above. For example, spending time negotiating the process and disclosure, on the front end of the mediation, may be required to set the stage for fruitful negotiations. There is great value to all parties in mediating such cases early, as long as we do it well.

It is important that Investigators explore the possibility of the parties attempting a mediated settlement prior to an Investigation, and prior to the parties hardening their positions. Failure to discuss this with the parties is depriving them of a viable, less costly avenue of resolution.

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Paul Godin is the Victoria-based founder of Katalyst Resolutions. He is an experienced mediator, lawyer, conflict coach, and investigator, with 20 years of global experience training professionals on negotiation, conflict resolution and coaching skills.

Steven Gaon is an Ottawa-based mediator and arbitrator with an extensive legal background, who has a particular expertise in conducting investigations into alleged harassment, breaches of ethics, conflicts of interest, regulatory violations, privacy and security matters and other forms of misconduct.

David Bennett is an Ottawa-based bilingual mediator and dispute resolution practitioner specializing in mediating, investigating and adjudicating human rights, sports, aboriginal issues, employment, workplace, commercial and civil disputes.