Workplace mediation: stopping workplace bullying in its tracks

Jenny and Peter had a good working relationship until 12 months ago when things took a turn for the worse. Jenny now refuses to work on any projects with Peter and has approached HR about lodging a formal grievance against Peter for his inappropriate management style and unjust decisions that Jenny believes have adversely affected her. Jenny also perceives that Peter is “bullying” her.

Peter is at his wits’ end trying to manage Jenny. He believes Jenny’s performance was previously exceptional and is now barely meeting expectations. He would like to commence disciplinary action and stringent monitoring of Jenny’s performance, and in particular, her productivity and absenteeism.

Sound familiar…?

Workplace conflict can take many forms, and research into personality psychology, organisational psychology, and developmental psychology which aid our understanding of the antecedents of conflict, is relatively immature.

Organisations and their HR practitioners usually adopt an investigative approach to workplace conflict in an attempt to understand ‘why’ a relationship breakdown has occurred. This approach may involve the use of internal policies and procedures such as complaints, grievances, third-party interventions, disciplinary processes, and other HR-led interventions. Inevitably, these interventions are highly adversarial and place an emphasis on what has occurred in the past. In the worst-case scenario, these types of interventions can result in a win-lose outcome and a “blame” culture which fuels an employee’s desire to seek out justice through further formal complaints including applications to tribunals such as the Fair Work Commission (FWC), state or federal Human Rights Commissions (HRCs), which may ultimately progress to formal litigation. These outcomes are not only resource-draining and have significant costs to organisations, but rarely result in productive workplaces if the individuals are required to continue to work together.

The benefits of mediation

Workplace mediation is an alternative intervention that can aid in cases of conflict or dispute, particularly where the situation involves interpersonal conflict or a relationship or communication breakdown. It is future focused and aimed at achieving a mutually agreed, win-win outcome for all parties that is sustainable and can be executed immediately following mediation.

Knowing when to utilise mediation can be tricky, particularly where formal bullying, harassment or other complaints have been commenced. It can be difficult to balance your Work Health and Safety (WHS) obligations including your duty of care to employees, against achieving the most efficient and favourable outcome for the organisation, parties and others impacted by the conflict.

While mediation can be used in several conflict scenarios, this article uses as an example, the common situation of where a bullying or (sexual or non-sexual) harassment complaint is made. We aim to provide some “food for thought” for HR practitioners and business leaders to consider when deciding whether to propose or utilise workplace mediation as a suitable form of issue resolution.

Bullying and harassment

Section 789FD(1) of the Fair Work Act 2009 (Cth) (‘FW Act’) defines workplace bullying as repeated unreasonable behaviour towards an individual (or group of individuals) which creates a risk to health and safety. The FW Act relies on the definition in the Sex Discrimination Act 1984 (Cth) (‘SD Act’) of ‘sexual harassment’ at work, which includes where the alleged perpetrator:

“makes an unwelcome sexual advance, or an unwelcome request for sexual favours…or engages in other unwelcome conduct of a sexual nature in relation to the person harassed”.

Each of the definitions of bullying and sexual harassment are intentionally broad, and as a result, can cover less serious offences such as verbal aggression, excessive criticism or monitoring of work, and comments of a sexual nature.

Part 6-4B of the FW Act provides protections for workers in respect of workplace bullying and, more recently, sexual harassment. In the event such conduct occurs, workers can make an application to the FWC for an order to stop the bullying and/or sexual harassment, or may alternatively file a claim of sex discrimination to the relevant state or federal HRC.

Why mediate?

Such applications as those outlined above, typically involve preparation for and attendance at a conference and a hearing, and where a claim progresses this far, there will be a public record and scrutiny of an organisation’s practices, likely leading to reputational damage. As such, it is clearly in the business’s interest to manage such complaints at a workplace level to prevent escalation.

In addition, notwithstanding the broad coverage of possible claims that a worker may make against their employer and the individual harasser(s), where an application to stop the bullying and/or sexual harassment is made to the FWC, it is open to the FWC to decide that it is not beneficial to make any orders where the employer has taken positive steps to ensure a safe workplace, although each case will depend on its own circumstances.

One of the ways that this could be achieved is through efforts to mediate the matter. While mediation may not be appropriate for all situations, it’s a positive, and often productive step that can benefit many workplace conflicts.

The question of whether mediation is appropriate in cases involving workplace bullying and harassment requires careful consideration of:

• the length of time and recency of the inappropriate behaviours or conduct;
• the seriousness of the alleged behaviour(s) or conduct;
• the extent to which the conflict has escalated;
• the negative consequences experienced by the victim and alleged perpetrator, including for example, any risks and/or effect(s) on health and safety;
• the willingness of both parties to engage in mediation as a means of issue/dispute resolution;
• the actual or perceived power imbalance – the ability of each party to negotiate an effective outcome through mediation; and
• the extent to which systemic organisational or group factors have influenced the issue/dispute – for example, organisational or role design, policies, systems or processes, and whether the parties are open to involving business leaders that have the authority to effect changes at a group or organisational level that are necessary to resolve the issue/dispute.

Effective interventions

Most research into bullying theorises that bullying arises as an outcome of escalating interpersonal conflict[2]. Organisations that utilise conflict management or grievance policies and procedures that utilise mediation, and build trust in the employer-employee relationship by consistently implementing such procedures, are more likely to be successful in stopping workplace bullying in its tracks.

Whether an act constitutes bullying or not is often irrelevant to the chances of resolving the matter through early intervention and mediation techniques. Managers who are trained to identify and manage conflict proactively will provide organisations with the greatest chance of preventing workplace bullying and harassment claims and mitigating the associated risks with FWC and HRC applications, reputational damage, lost productivity and WHS.

Ultimately, for mediation to be successful, all parties must voluntarily consent to participate, and any power imbalances must be controlled for and addressed by the mediator to ensure that each party is capable of engaging in effective negotiation. In cases involving complaints of workplace bullying and non-sexual harassment, mediation is generally suitable in the early stages of conflict where each party agrees to participate, there are little to no apparent negative consequences present (i.e., risks to health and safety), and the behaviours or conduct described is recent and of relatively short duration. It may, however, be necessary to proceed with a more formal investigation where a mediated outcome cannot be reached or one or both parties does not comply with the mediation agreement.

Mediation is not an appropriate intervention in most cases of sexual harassment. However, perpetrators of sexual harassment generally display other offensive behaviours that may aptly be described as harassment (of a non-sexual nature) before escalating to harassment of a sexual nature. Where such non-sexual harassment or inappropriate behaviour or conflict is identified or reported, a mediation approach may be effective.

Research shows that organisations that adopt a strong culture of addressing and managing conflict are more successful in preventing and neutralising the escalation of workplace bullying[3]; and further, that mediated outcomes are more likely to be effective when the parties are subject to further follow-up interventions by a mediator.

In Jenny and Peter’s situation, it seems that their conflict is escalating. Although Peter is dissatisfied with Jenny’s performance and Jenny is concerned about Peter’s behaviour, this is the perfect opportunity to introduce a mediation session to understand and address their issues with each other and help them to overcome their conflict to achieve a win-win outcome for both.

[1] For example, see Application by Ms LP [2016] FWC 763.

[2] Elfi Baillien at al, ‘A qualitative study on the development of workplace bullying and interpersonal conflict’ (2017) 26(6) European Journal of Work and Organizational Psychology 870-881; Heinz Leymann, ‘The content and development of mobbing at work’  (1996) 5(2) European Journal of Work and Organizational Psychology 165-184; Kristina Vaktskjold Hamre et al, ‘Preventing and Neutralizing the Escalation of Workplace Bullying: the role of Conflict Management Climate’ (2021) International Journal of Bullying Prevention.

[3] Kristina Vaktskjold Hamre et al, ‘Preventing and Neutralizing the Escalation of Workplace Bullying: The role of Conflict Management Climate’ (2021) International Journal of Bullying Prevention.

[4] Moira Jenkins ‘Practice Note: Is Mediation Suitable for Complaints of Workplace Bullying’ (2011) 29(1) Conflict Resolution Quarterly 25-38.

About our author

Amanda Curatore is a qualified Senior Associate at Citation Legal and Citation HR. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk. Amanda is also a Nationally Accredited Mediator through the Australian Mediation Association.