The rise of workplace mediation
August 18th, 2010
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from website of Human Resources Magazine at www.humanresourcesmagazine.com.au
Employers are increasingly turning to mediation and dispute resolution to resolve workplace conflicts. HR Leader looks at some of the latest trends and reveals the most common pitfalls for the unsuspecting HR professional
Post global financial crisis, Australian employers are quicker to nip workplace conflict in the bud through alternative dispute resolution and workplace mediation processes. Rather than fighting it out in courts and industrial commissions, large employers are intervening in workplace conflict, especially “employee on employee” conflict, much earlier than was the case even two to three years ago, according to a number of experts.
This is in part due to greater awareness about bullying in the workplace and the legal liability that will accrue to an employer who fails to take action, according to Siobhan Flores-Walsh, a partner at Australian Business Lawyers.
“Many employers are not waiting for an employee to complain about a situation before suggesting that the parties engage in some form of conflict resolution process,” she explains. “Employers tell us that if they wait until the formal complaints process is triggered, the matter will often bog down in an internal investigation process that can be damaging to relationships. Of course, early intervention is consistent with OHS obligations.”
The forms of conflict resolution processes adopted by employers are also evolving, says Flores-Walsh, who has worked in employment law and industrial relations for 18 years, including HR roles in the oil and media industries.
“While conciliation and mediation are popular, we are also noticing employers sending their employees to conflict resolution training as a preventative mechanism,” she observes.
“In addition, in circumstances where senior employees are in conflict with each other, some employers are asking employees to engage in conflict resolution training as a precursor to them trying to resolve differences together.”
Issues for HR professionals
A common workplace mediation and dispute resolution mistake made by HR professionals in the management team is to address the symptoms of conflict instead of the cause, according to Anna Booth, director of dispute resolution firm CoSolve.
“They invest in dispute management, seeking to address the stated issues using the disputes procedure, and when agreement is not reached, escalating the issues in the organisation and often to tribunals,” Booth notes.
“One organisation I was with recently was at the tribunal every week. Experienced professionals are looking behind the issues to the relationship and investing time in the painstaking process of building trust and respect between people and establishing the framework for working together.”
A simple yet often overlooked step is to communicate and consult with all the stakeholders, says Booth, who also serves as a Board member of Members Equity Bank and non-executive chair of Slater & Gordon.
“A recent experience saw an entire training program nearly abandoned because management assumed their undoubted expertise would be accepted without question by the workforce representatives, reminding us that how we go about doing things is just as important as what we do,” she recalls.
Flores-Walsh has also noticed that many employers inappropriately require victims of workplace harassment and bullying to effectively “negotiate” an outcome with the very person who has engaged in unlawful conduct against them.
Once an employee’s allegation has been substantiated, she says care should be taken before suggesting that the complainant enter into a dispute resolution process in lieu of, or to supplement, an employer imposed outcome. “Sometimes an employer should simply discipline the perpetrator,” she states.
“We often see employers who, having substantiated a complaint of bullying/harassment, nonetheless do not take disciplinary action against the perpetrator. Rather, the employer gets the parties together to negotiate an outcome.”
The parties are often referred to a mediator to assist them in the process, but Flores-Walsh says this is dangerous territory for an employer to enter. “Mediation is not like a court process where the court is interventionist and attempts to protect \each of the parties,” she says.
“Mediation and other alternate dispute processes essentially abandon the parties to their own skill or lack of skill and do not actively address the operation of power imbalances.”
Flores-Walsh recommends that employers only refer the parties to a substantiated complaint to alternate dispute resolution processes with the utmost of care, as an inappropriate referral could result in the employer breaching its duty of care to an employee by exposing them to risk of psychological injury in circumstances where the employee (typically an already traumatised victim) does not have the skills to cope with the process.
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