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 prior
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.
* Copied with permission from
another of the author's blogs, On New
Mexico Labor and Employment Law.
