Frequently Asked Questions…
About Workplace Mediations
Engaging Worklogic Consulting to conduct a mediation will give the employees an opportunity to have a managed discussion about the issues.
It can move employees away from hostility, and encourage them instead to engage in rational dialogue and work towards generating solutions.
In this way, in-house mediation can achieve positive outcomes for everyone involved.
Mediation is a voluntary, confidential discussion by the relevant people about the issues in dispute. The discussion gives the participants an opportunity to be heard, and to hear what each other has to say. The mediator guides the discussion and encourages those involved to find a mutually acceptable resolution to the issues raised.
The participants are encouraged – but not forced – to reach agreement. If they are unable to reach an agreement that they can live with, they will at least have a better understanding of each other’s perspectives.
Mediation can also assist in re-building working relationships.
Unless there is a concern for physical safety, most employment-related disputes can be mediated. We discuss with the employer whether a particular workplace conflict is suitable for mediation. For example, the parties to a mediation may discuss inappropriate workplace behaviour, poor communication, or disputes about terms and conditions of employment.
Mediation can also occur after a workplace investigation to help rebuild and normalise workplace relationships.
Once agreement is reached to participate in the mediation, we will:
- Arrange to meet the participants separately to understand the issues and to explain the process;
- Bring the participants together to outline their concerns and engage in facilitated discussion;
- Encourage them to understand the issues from each other’s perspective;
- Ensure neither participant feels disadvantaged, so that they can properly engage in fair and equal discussions and negotiations; and
- Encourage them to explore resolution.
The process is confidential and impartial. An outcome will not be imposed on the participants – a dispute can only be resolved in mediation if the participants agree on the outcome.
The participants themselves create and agree on the outcomes of their mediation, so there is no “standard” outcome.
What is the difference between mediation and facilitated discussion?
A facilitated discussion is like an informal meeting between the parties, so it is less structured than a mediation. In both processes, the mediator/facilitator sets ground rules of behaviour, addresses any power imbalances, and engages in reality checking, reframing and assisting the parties to discuss ways in which they can improve the future ongoing working relationship.
About Workplace Investigations
Many factors will influence your decision as to whether an external investigator should be brought in to investigate a workplace complaint. Here are some of the most important ones:
1. The severity of the allegations to be investigated
An external investigator may be required if you are investigating the allegations as potential ‘misconduct’. That is, they are sufficiently serious that, if proven, would likely breach the required standard of behaviour in your organisation, and therefore potentially lead to disciplinary action. If the internal investigation cannot be undertaken with sufficient thoroughness, in a timely and unbiased way, or provide procedural fairness to the parties, an external investigator may be the safer option.
2. Natural justice: the ‘no bias’ rule
If you are a small organisation, the person who would ordinarily investigate may be in a potential conflict of interest, or appear to the complainant or respondent to be biased.
3. The seniority of the complainant or respondent
If one of the parties is very senior, there may be a perception that the potential internal investigator does not have the requisite seniority or ‘clout’ to investigate the allegations, or feels conflicted in light of the obvious power imbalance (e.g. an HR Business Partner investigating the CEO).
4. Internal capacity to deal with the complaint
You may have no one in your organisation with the time or expertise to undertake an investigation, particularly if you are a small organisation and/or if the allegations are serious and lengthy. Again, where the allegations are serious, this creates a risk to the organisation if the investigation process is flawed.
5. The need for legal advice and legal professional priveledge to apply
Finally, you may wish the investigation to be undertaken at ‘arms length’, for the purpose of enabling your legal counsel (or external lawyers) to provide legal advice. In this case, the investigation report may be subject to legal professional privilege.
The first step is to triage the complaint to decide how best to resolve the employee complaint. This will involve gathering and evaluating all of the available information before determining the most appropriate way to proceed to resolution.
Factors to consider include:
- Understanding the particular details of the complaint;
- Examining and following relevant employer policies;
- Time and budget constraints; and
- Analysing the seriousness of the alleged misconduct and the potential consequences for the respondent if the allegations are proven.
Considering these factors will allow you to assess the potential risks to the organisation and guide you towards the most appropriate manner in which to resolve the complaint. You may then decide formal investigation is appropriate. You might also consider:
- Preliminary investigations (a less formal exploration of facts);
- A workplace review (if you suspect there are underlying workplace issues);
- Mediation; or
- Employee training.
In the event that an investigation is warranted, you can determine the scale and formality of that process depending on the nature of the allegations, their seriousness and the consequences for the employee should the allegations be proven. You should also be sensitive to the particular relevant circumstances of any parties (for example a party’s psychological issues).
It can seem a daunting process to weigh all of the circumstances of a particular complaint. However, taking stock before commencing a resolution process can help you ensure that you are effectively and efficiently protecting the health and safety of your employees and managing organisational risk. Remember, you can always contact Worklogic for a free one hour consultation if you need advice!
In making the decision as to which external investigator to appoint there are four questions you should consider asking:
1. Is investigation really the best option?
A good external investigator should be ready to proceed promptly and competently with a formal investigation, but should also recognise advise when it is better to save time, money and potential emotional distress by exploring other available avenues and even offering alternative services, at the outset.
2. Do they have the time, right resources and skills?
It is advisable to ask a potential investigator to provide details about their relevant experience, in order to ensure they can meet your requirements. This may include asking them to discuss the number of investigations they have undertaken, the sectors they have worked in and the types of issues they have encountered.
It is also recommended that you check the investigator’s availability, keeping in mind that there are a number of reasons why an investigation may encounter unexpected delays, including participant availability and health concerns. This is particularly an issue if you are considering appointing a sole operator, whose own leave arrangements and/or competing work assignments may impact on their ability to undertake and finalise your matter within a reasonable timeframe.
3. Is your investigation process procedurally fair?
It is essential that any workplace investigation is conducted in a procedurally fair manner to support informed decision-making and ensure that the results will not subsequently be overturned by a court or tribunal. It is therefore advisable to ensure that your potential investigator’s proposed process:
- Gives the respondent appropriate notice of the investigation and allegations;
- Gives both parties a supported, confidential and reasonable opportunity to have their say;
- Collects and considers all relevant evidence;
- Is not biased or perceived to be biased; and
- Acts diligently and promptly.
4. What value can you add post-investigation?
Investigations are often the tip of the iceberg, dealing with specific incidents that are mere manifestations of more deep-seated individual, team or organisational concerns. If an external investigator has done a thorough job, he or she should have gained a sound understanding of the context within which the investigation was conducted, and will be able to identify and discuss the broader issues facing your organisation.
It is therefore worthwhile considering whether your proposed investigator is also able to make recommendations on strategies to address these broader issues and whether they can deliver supporting services, such as remedial training, team-building activities, HR policy or values development and/or organisational reviews, and thereby prevent future investigations being required.
The reporting of a complaint and subsequent investigation are the first essential steps to address bad behaviour in the team. However, investigations are often the tip of the iceberg, dealing with specific incidents that are mere manifestations of more deep-seated individual, team or organisational concerns.
You must then work with your employees to help them to:
- understand what has happened (while preserving confidentiality and privacy of the participants)
- understand their own reactions to the conflict or complaint
- remember the employer’s expectations of them as professionals
- affirm the values that guide their work
- sometimes, to work together to define the new ‘ground rules’ of how they will treat each other in future.
Worklogic offers an extensive post-investigation support service to help you address these issues.