When is Mediation Appropriate in the Workplace?
Most policies, procedures, and regulatory bodies all have the ability to resolve things informally. Yet, many times mediation isn’t considered and subsequently passed over as a viable alternative to investigations. In our experience at Benard + Associates, we often find it useful to explore the possibility of a resolution when doing an investigation. So when is mediation appropriate in the workplace?
When both parties are only looking for a corrective solution, not a disciplinary solution.
In federally regulated matters, mediation or conciliation is something that is typically offered early on and an investigation only happens if conciliation is rejected by the principal party, who is the one that that is driving the matter. In other cases, for example in provincially regulated jurisdictions, people will just immediately go to investigation, and it is only after talking to the parties that the investigator finds out there is room to negotiate how the issue will be solved. As we speak to complainants and respondents, we often learn that neither party wants the other to suffer a disciplinary outcome. Usually, they just want the behavior to stop or change. In these circumstances, there’s sometimes an openness to consider less consequential processes to resolve the issue.
Oftentimes there is lots of wiggle room. You’ll talk to the person who made the complaint and they’ll say, “I just want them to behave differently, I just want things to be a little better. I’m not looking for anyone to get in trouble.” Then you talk to the person responding and they say, “When I think back about it now, I realized maybe I could have done things differently and responded a little differently when they came to me with the concern.” As soon as you start to hear these ideas, it should be a trigger to start looking at mediation.
When the behaviour/issue is non-egregious
Mediation helps to resolve issues without involving a bunch of other people. Mediation also prevents the issue from becoming bigger than it needs to be. Of course there will be cases that are inappropriate for any kind of alternative dispute resolution process. Sometimes, the situation is severe enough or egregious enough that an investigation is the best and only option. This includes any kind of sexual harassment. For sexual harassment cases, a thorough investigation is necessary. In other times, there are cases where we can find a way to resolve the conflict without going down the path of investigation. Just be sure that you’re not re-victimizing people and putting them in situations that are inappropriate.
Investigations can be cumbersome, intrusive, and they take a long time. Sometimes we can help people solve their issues without leaping straight to an investigation. So if you are an investigator, it might be worth considering mediation and looking at other possibilities.