As
I have previously written, bullying is a hot topic today. Cleaning House and Cleaning Up Our Acts - Anti-Bullying
Legislation, and Bullying Legislation, Revisited. As such,
it is natural for alternative dispute resolution (ADR) practitioners to move into this field. However, caution should be
used in doing so, and practitioners should consider in each case whether
mediation is appropriate and, if so, what it should look like.
In
the Fall 2011 issue of the ACR Conflict Resolution Quarterly, Vol. 29 No. 1,
Moira Jenkins asks Is Mediation Suitable
for Complaints of Workplace Bullying? Although she herself does not appear
to come to any firm conclusions, the article raises a number of helpful points
to be considered by managers and individual ADR practitioners consider the
issue. First, as Ms. Jenkins observes,
bullying is often not well defined, and in the workplace bullying may be
confused with a number of other activities that are similar but nonetheless
distinct.
One
good working definition is that which has evolved in the UK: “repeated exposure to negative behaviors that
are specifically directed at a target or group of targets,” with the negative
behavior occurring on a regular basis (at least weekly), and over an extended
period of time (such as six months). Id.,
citing Einarsen, Hoel, Zapf and Cooper (2003). Jenkins also proposes a definition that is based
on large part on the South Australian Occupational Health and Safety
legislation (Section 55): “any repeated behavior s that target an employee or
group of employees, that a reasonable person, taking into account all of the
circumstances, would expect to undermine, victimize or threaten the
employee(s), and that potentially pose a risk to the target’s health and
safety. I am troubled by the “undermine”
portion, because I can imagine a particularly sensitive person claiming
emotional distress for being undermined or not supported by a co-worker or
supervisor, but otherwise it is also a workable definition.
In
addition to the basic framing, workplace bullying is also marked by a number of
attributes. It may be either immediately
predatory or characterized by a pattern of steady escalation. It often involves retaliation if the
complainant attempts to take protective action.
Finally, it typically involves some sort of power imbalance.
However, as I've written in my previous articles, the
ADR practitioner must be aware that a number of practices called
“bullying” by a complainant do not fall into that category. These may include actions as ordinary as
incivility or counterproductive behaviors.
They may also include much more dangerous or damaging conduct that can
subject the employer to independent liability, such as harassment, workplace
violence, or abusive supervisors.
Therefore, careful screening is warranted to clearly identify and triage
a “workplace bullying” claim before mediation begins.
In
this screening process, the ADR practitioner will consider whether the
particular complaint is amenable to mediation.
For instance, Jenkins argues that workplace bullying claims are best
addressed early on, when “both parties are often interested in resolving the
conflict reasonably,” and in good faith.
After the conflict escalates and one or more parties become more
aggressive” mediation naturally becomes more difficult and risky. Thus, mediation will not generally be
appropriate where it is “predatory in nature, or has reached a destructive
phase where the intent of either party is to destroy or at least control the
other through violence.” However,
Jenkins sees increased potential for effective mediation after an investigation
and/or discipline has taken place.
In
mediating workplace bulling claim, Jenkins also cautions practitioners to be
mindful of the broader circumstances surrounding the individual relationship at
issue. For instance, attention should be
paid to such organizational factors as how work is organized, leadership
styles, “role conflict and ambiguity,” job insecurity, and work stressors. Attention should also be paid to the “social
environment” of the workplace, such as if there are in and out groups,
tendencies towards gossip or group hostility, or group pressures to
complainant(s) and respondent and their “interpersonal dynamic,” in a workplace
bullying claim.
Finally,
“one of the primary roles of the mediator” in a workplace bullying claim will
be “to manage the power relationship between the parties.” Id., citing Wall (1981). Here, I posit that lessons may be taken from
family mediation involving claims of domestic violence, and the mediator will
expend considerable time and attention assessing safety concerns, and creating
a safe environment. Jenkins suggests
educating the parties of their rights, and any ability to lodge a formal
complaint with an outside government agency.
She also endorses restorative measures, and the use of conflict or
communication coaching to prepare the parties for mediation, and in follow
up. Finally, Jenkins advises the
mediator to work closely with Human Resources and any counseling personnel.
All
said, mediating workplace bullying claims will be especially challenging
because marked by some unique features that require special consideration. However, mediation is not inherently
impossible, and should be explored with a trained and experienced ADR
professional.
If you have any labor or employment matters that you would like
to resolve privately through a knowledgeable and experienced arbitrator or
mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.