There is a time and place for mediation but a bullying allegation in the workplace is not one

 By Carmelene Greco

 

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

bully

Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

 

Workplace bullying is notoriously difficult to define and there is still no nationally uniform definition. It has been described as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”.  It involves an addiction to controlling others, harassment and verbal abuse and constant unjustified criticism. It is not, as accurately stated by the Fair Work Commission, “reasonable management action that’s carried out in a reasonable way”.

Mediation, which aims to be an empowering process, involves trained third parties intervening on a dispute to assist parties to make their own decisions. As stated by the National Alternative Dispute Resolution Advisory Council:

The mediator has no advisory or determinative role…but may advise on or determine the process of mediation…

Therefore, any solution is not imposed on parties but arises out of the empowerment of the parties to make it themselves.

It is important to stress that there is a lot of evidence of mediation providing an effective outcome in many cases where it helps facilitates solutions to problems that appear unsolvable. However, the key distinguishing features of mediation, which make it an attractive option in many instances, are the very reasons it is inappropriate for workplace bullying.

 

Comparing workplace bullying and family violence

The very nature of workplace bullying automatically suggests that mediation is an unsuited response. Workplace bullying is frequently compared to domestic violence – they are considered “almost identical twins”. In both scenarios there is an addiction to power, the controlling of another in a detrimental way and a severe power imbalance.

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 mandate of alternative dispute resolution where there is the presence of family violence. This displays the recognition by the Australian Parliament of how a severe power imbalance can undermine the benefits of mediation.

Similarly, in the case of workplace bullying, a power imbalance and a potential ongoing relationship exists, as such the effectiveness of mediation is reduced.

Consistently, shuttle mediation may also be an ineffective solution as it can exhaust parties into premature agreement, as well as not effectively ensuring the relationship of control has ceased.

Accordingly, on the basis that mediation is not appropriate for allegations of domestic violence, it is equally unsuitable for allegations of workplace bullying. It was argued by Hadyn Olsen that:

The practice of demanding mediation as the first response to any workplace grievance (including Workplace Bullying) places our society back in the same position it was in the 60’s and 70’s in regard to domestic violence. It is an entirely inappropriate response to this problem.

In conjunction with this dynamic is the fact that there are very few options available to the target of workplace bullying. It can be that the target has already resigned, intends to resign or is still employed and wishes to remain employed. The target is likely to be placed in a position of being wedged in a toxic working environment because of their financial needs and a lack of options for alternative employment. This again places the target of workplace bullying in a particularly vulnerable position, which is unique to this category of dispute.

The defining feature of workplace bullying allegations is the power imbalance between the bully and their target, which is exacerbated if the employer is also the bully. Mediation in such conditions is likely to reinforce the dynamic and worsen the situation, as it would in the domestic violence context already discussed. Meanwhile, reaching a constructive outcome jointly between parties is the hallmark of mediation – that is it involves a compromise and a desire to settle. A bully is unlikely to have this aim but instead view the mediation as an opportunity to further manipulate the target. Furthermore, the target is likely to be further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate with the bully.

Hadyn Olsen noted that he has not met any target of workplace bullying who feels mediation was fair for them but argues that instead, in most cases targets feel further abused and damaged by the process. Similarly, a representative from Northern Territory Working Women’s Centre stated that:

The imbalance of power is so profound that she is just not able to speak freely… I think it would be unsafe and really inappropriate if it required the person who was being bullied to sit face to face with the person who was bullying her….

  

Bullying is not and cannot be a neutral agenda item

In a typical mediation, the issue to be considered is one that both parties are equally as affected by or equally contributed to. But in the context of workplace bullying, the agenda is entirely based on the inappropriate behaviour of the bully in the workplace.

A mediator may struggle to frame this issue as an agenda item and by referring to it as a ‘relationship’ the target of the bullying may interpret this to mean the mediator does not believe the bullying occurred. At the same time, a bully would view this as a reinforcing their lack of fault. Therefore, in workplace bullying allegations the person and the issue cannot be separated and trying to frame it otherwise can be detrimental.

 

Mediation fails to punish past behaviour

 Mediation focuses on the present and future relationship between the parties and does not punish past behaviour. This is because it usually involves a mutually engaged in conflict. But workplace bullying is different. There is clearly one victim; one person who needs recognition of what has occurred in order to heal and move on. Dr Caponecchia stated that:

Mediation is more focused on not whether it happened or not but, ‘Let’s get back to work’, which may mean transferring someone.

Facilitators of workplace mediation argue that this is a benefit of mediation because it offers a fresh start and is about moving forward. However it is unlikely that targets of severe bullying will be looking for a fresh start and, instead, are more likely to want recognition and an apology. This is particularly the case where the target has decided to resign from their employment.

 

Public interest

 It may also be in the public interest for matters of workplace bullying to go to court and not to be held in a private mediation. Mediation keeps any wrongdoing outside public scrutiny or knowledge. This is not a good thing because the knowledge of the prevalence of workplace bullying is significantly restricted, which in turn, reduces the likelihood of policy being developed in response. Because of the high levels of workplace bullying in Australia, full transparency is necessitated to establish an effective response.

 

But does this mean mediation can never be appropriate for workplace bullying?

 It is arguable that a complete power balance between parties to a mediation is not the norm and hence it is always the role of the mediator to manage this relationship and minimise the impact of any imbalance.

Power imbalance can be managed by:

  • the use of support persons for each party (whether that be a family member or otherwise);
  • effectively communicating the rights of each parties and ensuring they are aware of these rights;
  • reality testing the options available to both parties;
  • representation by an advocate; and
  • informing the target that they have specific rights against the bullying – such as the ability to lodge a formal complaint.

If it is believed that the imbalance of power is not so severe that a mediator can effectively manage it, mediation may potentially be appropriate. However this is going to very much depend on the particular situation. It is likely that a mediator is going to be able to more effectively manage the power imbalance if intervention is early. Mediation is of no use where the target is now seeking full justice or retribution.

Consequently the suitability of mediation very much depends on the stage of escalation of the bullying. It is thought that mediation can be a helpful early intervention technique. The House of Representatives, Standing Committee on Education and Employment (2012), inquiry into workplace bullying found that several submissions supported mediation as an early intervention.  It was stated in that report that:

Mediation cannot be the panacea to workplace bullying, rather, it is an effective early intervention tool and needs to be applied on a case-by-case basis.

Moira Jenkins also supported the use of it as an early intervention model stating that:

I do not think mediation is appropriate later on when you have very damaged people, but as an early intervention I think it is great.

We should begin with the assumption that mediation is an inappropriate way of dealing with workplace bullying. Where the bully is the employer, this position will not change. In such cases, arbitration provides a more appropriate dispute resolution option as it offers the opportunity for the past wrongdoings committed by the bully to be discussed and for them to be held to accountable. This is an important process for the victim in moving on and essential to facilitate a productive working environment by focusing on past behaviour, which mediation fails to do. In addition, arbitration allows somebody in power to define what is and isn’t bullying and to avoid allegations by the bully of hypersensitivity in the victim.

Alternatively, however, if it is identified that the bullying is at the very early stages of escalation and that a mediator is able to effectively manage the existing power imbalance, mediation may then be carefully conducted. If there is any doubt, it is in the best interest of the general public and of the target, that mediation is avoided as a means of managing allegations of workplace bullying.

A consequence of this protection of the victim of workplace bullying may be, unfortunately, that their access to justice is reduced to some extent. However, this is, in many circumstances, a necessary concession. Additionally, the availability of arbitration, which is not an overly expensive option for litigants, ensures that justice is not inaccessible.

 

Carmelene Greco completed a Law/Arts degree, with a major in journalism, at Monash University in 2016. She is now a graduate lawyer at King & Wood Mallesons and has a keen interest in exploring alternative dispute resolution prospects within the commercial law context.

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This entry was posted in Uncategorized and tagged , , , , , by Dr Becky Batagol. Bookmark the permalink.

About Dr Becky Batagol

Dr Becky Batagol is a senior lecturer in law at the Faculty of Law, Monash University. In 2017, she is the President of the Australian Dispute Resolution Research Network. She is a researcher and teacher with a focus on family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky is the chief-editor of the ADR Research Network blog and tweets regularly under the handle @BeckyBatagol.

8 thoughts on “There is a time and place for mediation but a bullying allegation in the workplace is not one

  1. As with family violence, what is the alternative to mediation? The answer is a process which makes the target even more vulnerable, like taking a matter to a formal process such as court or tribunal. Mediation with safeguards is still likely to be the best alternative.

    Liked by 1 person

    • Thanks for your comment Janet. I agree that ensuring safeguards in the resolution process is vital in order to protect victims of family violence. The issue with mediation, however, may be that it may remove some necessary safeguards by failing to adequately address the issue of power imbalance between the parties. This is because the nature of mediation is largely party directed. A beneficial alternative may be arbitration. Alternatively, a carefully conducted mediation may be suitable in cases where mediators can effectively manage any power imbalance between parties.

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  2. Carmelene has written a thoughtful and considered paper on what is a challenging area of human relationships. I think there are indeed some disputes which are not suitable to be mediated, either because they require an authoritative determination of the court or perhaps because the dispute arises from behaviour that calls for public denunciation or a public apology which is inconsistent with the confidential nature of mediation. I would hesitate to generalise though or to exclude certain types of disputes from consideration on the basis of their character. This is because, as the article acknowledges, mediation is a tool which needs to be considered on a case by case basis and it may be that, in any given case, particular concerns (such as, for example, power imbalances) can be addressed within the mediation model.

    Liked by 1 person

    • Thanks for your comment John. I agree that each case should individually be considered to determine it’s suitabliliy for mediation. It may be that a case of workplace bullying lends itself to be dealt with via mediation processes, particularly when it is at an early stage of escalation as that when particular concerns may be more readily addressed.

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  3. Very thoughtful work which is a valuable addition to the thinking about the role of mediation in resolving bullying disputes. Like some of the other commentators, I am also a ‘case by case’ person. I have had a number of experiences as a mediator where the allegation of bullying turned out to be the last desperate measure of a senior person frustrated by management’s unwillingness to address broader management concerns. Sometimes using the ‘B’ word is a way of getting attention otherwise unavailable. I have found adopting an extended intake process is a really good way to identify those cases that are likely to to be susceptible to a mediated outcome and those that require a very different process.

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    • I’m enjoying this debate. It is wonderful to be part of a community of scholars who think critically about these issues and who debate them respectfully. Well done Carmelene for getting the ball rolling.

      Rosemary and Olivia, your comments are informed by years of dispute resolution experience that I can’t even approach. I have not seen these cases in action so my perspective is limited.

      But I was a little bit worried about your comments about a claim bullying being a way of gaining power/ attention. Olivia, I was particularly worried about your comments which seemed to conflate bullying claims with conflict.

      Of course, people do make false bullying claims. But in my years of involvement in family violence I have often seem legitimate claims of FV nullified by claims that the allegations are false or that the violence is just a
      Manifestation of conflict between the couple. In terms of FV, we know that very few claims are false and that FV is an exercise of gendered power by the perpetrator against the victim. It is not conflict.

      Is there any chance that a mediator adopting your suggested approach to the parallel issue of workplace bullying could silence legitimate claims?

      I don’t speak from professionals experience as a drp. But I was concerned about this aspect of your comments.

      Liked by 1 person

      • Thanks Becky, it’s so important to clarify and question, for all of the excellent reasons that you raise. Thank you for the opportunity to reflect further on what I was trying to say. I absolutely agree that too often complaints of FV are not taken seriously because of doubt that complainants are telling the truth. It is absolutely essential that complaints of FV and bullying in workplaces are all taken seriously from the point of complaint. To clarify – I think that the focus should be upon the behaviour itself and the impact that it had on the people involved. Sometimes the word “bullying” can distract from that exploration because it is such a loaded term that is used to describe a wide range of behaviour. Abuse and violence are better labelled just that (in my opinion). I acknowledge, however, that for the purposes of the post, Carmelene gave “bullying” a specific meaning that equates with abuse or violence. My comment was focused upon a broader range of behaviours that a complainant might include within the meaning, and which would fall within what you described as “relationship conflict”. I hope that is less worrying? Thanks again.

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  4. Thank you for this excellent post. It is so important that in our enthusiasm for mediation we maintain a critical lens and watch for blind spots where a process we champion may not support quality decision making. I agree with Rosemary, that the “b” word can itself be used as a power play. It can also be personally devastating for a person to be the subject of an allegation of bullying. The word can itself create a barrier to people resolving their interpersonal difficulties. Where people need support to decide how best to deal with tricky, unpleasant, and/or disempowering situations at work, I wonder whether conflict coaching has an important role to play. The structure of workplaces can mean that the people receiving and managing complaints of bullying are part of an hierarchical organisation where many people feel disempowered (including managers). Conflict coaches can be a person’s independent yet partisan champion – they do not have an investment in the resolution of the dispute and their service is shaped by the goals of the client. They can support a person to decide how to deal with the realities of power affecting their situation. Of course, the perennial problem with work based dispute resolution services is that she who pays (the employer) may expect to have some influence in shaping the process, and this can pose an ethical dilemma for the DRP.

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