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Thursday, May 17, 2012

Mediating Workplace Bullying Claims


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.

Pilar Vaile, P.C.