Workplace bullying – is mediation appropriate?

Bullying and harassment is nothing new to the workplace. However, because our world is becoming socially more conscious with the advent of movements such as  #MeToo and  #TimesUp, people are becoming more courageous about bringing these issues out into the open.  A question I have pondered as a workplace mediator is whether mediation is the most suitable way to deal with the conflict that has arisen from the increase of bullying complaints in the workplace.

Definition and effects of workplace bullying

Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or group of workers. It can encompass behaviours that target an individual’s work (e.g., unreasonable demands) as well as personal characteristics (e.g., teasing and spreading rumours).

It is estimated that nearly half of Australian employees have experienced some form of workplace bullying during their lives. It is also known to be associated with many adverse outcomes such as poor mental health.

Importantly, workplace bullying can also have a significant impact on organisations through increased absenteeism and presenteeism, high rates of staff turnover, unfair dismissal allegations, and expensive legal costs.

Case Study:

I was recently called in to conduct a mediation between two employees in a large government organisation.  The parties were part of a small team of twelve employees. Party A was the team manager. Party B was a team member who had been part of the team for around nine months.  After conducting a pre-mediation with both parties individually, it was clear that their relationship was fractured. The cause appeared to stem from a pattern of behaviour on A’s part towards B which fell within the definition of bullying. For example, B spoke about being excluded from team meetings on an ongoing basis. She also mentioned that on numerous occasions, A would put her down and belittle her performance in front of the team which was humiliating and ultimately impacting the rest of the team’s behaviour towards her as A had a very dominant personality. A, in her pre-mediation, surprisingly admitted to much of this behaviour but said it stemmed from B’s work performance. She was not included in meetings because she was the most junior member of the team and did not have much to contribute to the meetings. She asked many questions and conceded that perhaps she could be more supportive and stop the negative body language.

Organisation’s Goals

Party A could have lodged a formal complaint against Party B by following the organisation’s grievance procedures for poor work performance, however failed to do so. The situation had been only brought to HR’s attention by other members of the team who complained that the conflict was impacting the entire team and they were nervous it would roll over into the rest of the organisation. HR had called in the two parties in an earlier attempt to resolve the issues, but it appeared that the parties were not entirely honest and forthcoming about the situation. This commonly occurs when a power imbalance exists between the parties, and there is a fear that revealing the truth would not be productive in any way and may impact their career negatively.

Mediator’s Goals

I was called in by the organisation, as an external mediator, after this situation had been going on for a few months to conduct a mediation in order to attempt to restore the parties working relationship.

After meeting the parties separately to get their perspectives on the situation, I had to question whether mediation would be appropriate in this case. I asked myself what the most likely outcome would be. The motives of Party A, I believed, were in question. While she had acknowledged that she might have engaged in some negative body language, her narrative remained that B was a junior member of the team not privy to invitations to attend meetings that the others attended. That she was constructive in the criticism of her performance and that the only real problem was B’s sensitivity to constructive criticism. Would A’s aim thus be to view the mediation as an opportunity to manipulate Party B further? Furthermore, B expressed to being intimidated by A’s strong personality and was nervous to stand up to her directly as she had a fear of being bullied even further and being turned on by the rest of the team who were also, she believed intimidated by A. She was likely therefore to be further disempowered and unlikely to reach a successful outcome because of a lack of ability to negotiate with A. The situation had also been going on for months which had only escalated the bullying.

What is the goal of workplace mediation?

The goal is primarily to resolve a conflict between parties in dispute with the aim of restoring their working relationship. Both parties must be willing to compromise and to engage in forward-looking dialogue to put the past behind them, draw a line in the sand and move on. The question turns to whether the bully will be authentic in wanting to achieve this goal rather than view the mediation as an opportunity to manipulate the victim further. Also, it may be that the victim will feel further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate (i.e., they cannot speak freely) with the bully or will agree to an outcome that they feel forced into making.

It is clear that a significant feature of workplace bullying is the power imbalance which is reinforced by the ongoing relationship between the two parties. Victims often feel that there are few options available to them. It may seem the only choices are for the victim are to resign or continue to work in the toxic work environment due to financial needs, both of which leave the victim in an extremely vulnerable situation. The very nature of this power imbalance associated with workplace bullying suggests that mediation is not an appropriate response as in such conditions it can reinforce the dynamic and sometimes worsen the situation.

Typically, in mediation, both parties are equally as affected by or equally contributed to the dispute in question. However, in the context of workplace bullying, the agenda is entirely based on the inappropriate behaviour of the bully in the workplace. There is only one victim; a person who needs acknowledgement of the harm inflicted to them in order to heal and move on.  Usually, the victims of severe bullying are not looking for a fresh start with the bully. Instead, they would probably want, at the very least, an acknowledgment of the bully’s unacceptable behaviour, an apology and an undertaking to refrain in the future from the same behaviour.

Comparing workplace bullying with family violence

It may seem an extreme view, but workplace bullying is often compared to domestic violence in that in so many ways, the two phenomena directly mirror each other. In both contexts, negative control of another person is involved, there is an addiction to power, and a significant power imbalance exists in that the recipient is not seen as an equal. Victims of workplace bullying, like victims of domestic violence, are trapped in relationships from which it is difficult to remove the perpetrator.

Mediation and other forms of ADR can be considered inappropriate in cases of family violence. This is exemplified by current Australian family law legislation that affords an exception to the requirement of alternative dispute resolution where there is the presence of family violence. That is not to say that these cases cannot be mediated. They can, but only in specific circumstances where the victim of domestic violence does not feel too threatened and where it appears that they have the capacity to mediate.

Does this mean that mediation can never be appropriate for workplace bullying?

It is questionable that there can ever be a real balance of power between the parties and thus it is always the role of the mediator to manage this relationship and minimise the impact of any imbalance.

The power imbalance can be managed by:

• An acknowledgment by the bully: In the individual pre-mediation session with the alleged bully, it will be necessary for the mediator to ascertain their perspective on why the bullying behaviour took place and whether they understand the impact of their behaviour on the victim. If the mediator can gauge whether the bully has insight into their behaviour which may not have been maliciously intended and is willing to acknowledge its impact, in this case, there is a reasonable prospect that both the parties will have the capacity to mediate to resolve the crisis;
• Reality testing the options open to both parties: Mediators usually aim to get the parties past their “positions” so they can focus more productively on their “interests.” This involves brainstorming and reality testing some of the options that are put forward by the parties with the mediator’s assistance. Examples of some possible options are:

(a) Agreeing to keep the lines of communication open with each other and talk directly to each other as soon as any issues arise;

(b) Treating each other with mutual respect;

(c) Making an apology;

(d) A transfer or resignation if the relationship cannot be restored.

• You are effectively communicating the rights of each party: ensuring that the parties are aware of these rights such as the right of the alleged victim to lodge a complaint or contact the Fair Work Commission.

Accordingly, if the power imbalance can be suitably managed, mediation can be an appropriate forum to resolve bullying complaints. I would, however, argue that every situation will have to be determined on a case-by-case basis.

Early intervention is best

 It is likely that a mediator will manage the power imbalance more effectively if intervention is early.  This is not to say that mediation will not be beneficial if not conducted early. It may be that mediation can still be useful following the outcome of an internal or external workplace investigation, during legal proceedings, for example, the Fair Work Commission may order the parties of an application for an anti-bullying order to mediate, or after legal proceedings where an employee’s application/lawsuit was not successful, and the parties still need to work together.  The mediator, however, will have to be mindful of the existing power imbalance and manage it in one of the ways discussed above. However, if the power imbalance is so unequal that supportive measures cannot rectify it, then it is best not to pursue mediation in this case.

In the case study above, I investigated the issues from a risk management perspective. This involves identifying organisational factors that are possibly contributing to workplace conflict or bullying and once identified, the organisation can work on either eliminating them or controlling them. Organisations that focus only on the relationship between the parties to the dispute fail to recognise that any poor behaviours exhibited by the alleged bully and/or the other party, would not have occurred if the environment or culture had not been permissive of the behaviours.

Several risks were identified in the organisation in the above case study, of which the most significant was the leadership/management style and a lack of a comprehensive grievance procedure.  Recommendations were made to the organisation on how best to resolve these risks.

Conclusion

I believe that bullying complaints need to be mediated early to have the best chance of restoring the parties working relationship. It must be acknowledged that it may sometimes be too late to rectify this relationship, or the power imbalance may be too significant to manage and thus mediation will not be appropriate in these situations.

I would encourage organisations to have a comprehensive grievance process in accordance with their workplace policies and procedures and to deal with the complaint as soon as it comes to their attention. In this case, mediation may not even be necessary if it is resolved to both party’s satisfaction.

Saranne Segal is the Director of Segal Mediation Group in Sydney Australia.  She is a workplace mediation and investigation expert and worked as a lawyer prior.