Oct 14

Mediate or Investigate? It’s all about assessing risk

The decision to either mediate or investigate is a choice that human resources professionals face regularly, and it is usually a matter of choosing from several pretty unpalatable options.

At Worklogic, we often provide assistance to our clients in determining the best course of action for resolving conflict and complaints.

What we know for certain in complaint management, as my colleague Vanessa Cullen recently explored in her blog “Learnings on when to investigate workplace complaints and what is reasonable management action”, is that it’s never OK to simply do nothing. Everything else is shades of grey and choosing whether to mediate or investigate is one of the most common grey areas that we assist our clients to navigate.

Ultimately, for an organisation, the decision is one based on assessing the various risks inherent in the conflict or complaint.

Mediation

Workplace mediation involves a voluntary and confidential discussion between those involved in the conflict, which is facilitated by an impartial mediator.

The goal of a workplace mediation is for participants to resolve the dispute themselves, by making an informed decision that everyone can live with. The mediator will not impose an outcome and a resolution will not be required or forced on the participants.

Mediation is a form of interest-based conflict resolution.

Investigation

A workplace investigation is, at its core, a fact-finding mission.

The goal of an investigation is to independently and fairly gather all of the information that is relevant to establishing the facts of an event, or series of events, to make a judgement about what has occurred, and fundamentally, whether an employee has breached any legal, contractual or policy obligations to their employer.

Investigations are typically considered to be rights-based resolution.

Making a sound choice

These contrasting goals and approaches start to inform the risk-based decision-making process:

If a complaint or allegation, if proven, would amount to a breach of policy or law, and would be likely to result in formal disciplinary action of some kind, then an investigation is definitely warranted.

Put simply, if an organisation needs, from a risk perspective, to establish the facts of what happened, in order to determine the appropriate remedy, then an investigation is usually the best way forward.

Similarly, if an organisation’s policy, or enterprise agreement, specifies that an investigation must occur, say in the case of a formal complaint being made, from a risk perspective, an investigation should occur.

The potential risks of investigating

Sometimes though, people make the mistake of thinking that an investigation is the safest option. They assume that an investigation is the “belt and braces” approach. But this assumption can fail to take account of the risks of subjecting employees to an investigation that is not warranted in the circumstances.

These risks include:

  • Causing unnecessary stress and distress for the parties involved. Investigations are tough on the people involved, and even well-run investigations can precipitate illness, sick leave and Workcover claims
  • Entrenching the conflict between the parties, making it more difficult to resolve in the long run. This has obvious implications for productivity
  • Spreading the conflict to others. Where an investigation requires witnesses to be interviewed, those witnesses can end up taking sides, where they otherwise would not
  • Inadvertently creating a culture in which dissent, or even creative and respectful, productive conflict is seen as a no-go zone

So if a complaint does not describe, through well-formed allegations, a right or obligation which has been breached, although it may be tempting to investigate, just to be safe, there is a valid question as to whether an investigation should occur.

In a case like this, where a right or an obligation has not been breached, it is reasonable and appropriate to allow the parties to the complaint or conflict to control how the matter is resolved.

Factors to consider for mediation

Once mediation has been identified as an appropriate mechanism to resolve the conflict, there are factors that need to be considered and managed to ensure that reasonable, workable and durable outcomes are achieved:

  • Whether the parties involved are willing to mediate to reach an outcome. Successful mediation must be voluntary
  • The parties must be competent and capable of negotiating and mediating a reasonable outcome. This includes being able to determine their own interests and represent those interests during mediation
  • Differential status and power need to be considered and managed
  • The mediator must be seen and experienced by the parties as being and acting independent of the parties involved

Thankfully, each of these factors can be addressed by using an independent, qualified mediator.

Finally, although determining the right course of action in an individual case can be tricky, establishing and utilising an integrated complaint management system that includes a range of mechanisms to appropriately resolve complaints, is the most important first step. And sometimes, despite best efforts to assess risk, it remains unclear as to whether to mediate or investigate. In these cases, a preliminary assessment might be necessary, but that is the subject of a blog all of its own.

Workplace Investigations Book, 3rd Edition !

Worklogic is thrilled to announce that the third edition of Workplace Investigations published by Wolters Kluwer is now available for purchase!

As part of our celebration of the launch of our third edition, we are running a four-part series, “Meet the Authors”. In each of these short audio chats, we are taking a deep dive into some of the hot topics in the latest edition.

In the second audio chat Rose Bryant-Smith discusses investigating senior employees. You can listen to it here.

About Angela Seach

Angela Seach is an experienced workplace coach, and brings substantial experience across the full spectrum of strategic and operational people and culture management functions in public and private sector organisations to Worklogic. 

Prior to joining Worklogic, Angela was an accomplished senior organisational development manager with a significant track record in successfully driving outcomes in large, complex and geographically dispersed organisations, including the Country Fire Authority, Ansett Australia and Air New Zealand Engineering Services.

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