Workplace investigation, mediation roles are apples and oranges
By AdvocateDaily.com Staff
Organizations faced with workplace conflicts may be required to call in an independent investigator to uncover the root cause of the issues and make recommendations but they shouldn’t, as a general rule, retain the same person to mediate, says Toronto mediator Bernard Morrow.
“The idea of a dual role, where the investigator becomes the mediator, was raised at a recent joint ADR Institute of Ontario/Human Resource Professionals Association meeting,” says Morrow, principal of the full-service dispute resolution firm Morrow Mediation.
“It was floated at the meeting that human resources professionals could partner with mediators to conduct investigations of workplace issues and then provide mediation services. It’s an interesting topic for discussion, but I’d be concerned about an inherent conflict in having one person perform both roles. I suppose it could work in circumstances where the parties to an investigation have all been carefully and thoroughly consulted and provided informed consent to the dual role, but I would want to proceed very cautiously in those cases,” he tells AdvocateDaily.com.
The roles should be separate and distinct, Morrow argues, because the investigator’s role is much different than the mediator’s, which could lead to questions of bias by those participating in each process if the investigator assumes a mediator’s role after the completion of the investigation.
“I’ve worn both hats, but never at the same time,” he says. “When you conduct an investigation, you are involved in an inquisitorial process. You meet with witnesses and ask pointed questions to get the full story from all points of view.
“It’s very divisive and adversarial and, although it’s confidential, when people see me coming and going, they begin to wonder what’s going on,” Morrow says.
However, the demand for such investigations and post-investigation mediation is rising, he notes.
“With amendment’s to Ontario’s Occupational Health and Safety Act in 2010, Bill 132 in 2015, which deals with a range of matters including sexual violence and sexual harassment, and, of course, the recent #MeToo movement, we’re seeing many more workplace complaints,” Morrow says.
“And so you conduct this divisive investigation into sensitive issues, and, in doing so, you may lay bare the heart and soul of the organization, and the challenge becomes bringing that workplace back together again. Whose role is that? I don’t think it can be the investigator's,” he says.
The nature of the issues dividing the workplace range from fairly simple to complex but resolving them is a very different process than uncovering them, Morrow stresses.
“Many of these complaints are what you might call sandbox disputes,” he says. “They’re frequently personality-based or about the communication style of a manager. They often call for someone to come in and work with the team to establish parameters and protocols around safe and respectful communication and collaboration.”
The restoration phase takes a different skill set to bring parties back together, Morrow says.
He points to the philosophy of his colleague Blaine Donais in bringing restoration ideology to the workplace.
“Blaine is the founder of the Workplace Fairness Institute, which has developed a holistic approach to workplace restoration,” Morrow says.
“A workplace investigation can be disruptive, so through their model, they first assess and evaluate what kind of intervention is needed to establish fair, effective and sustainable solutions for managing and resolving workplace conflicts,” he says. “It could be that an investigation is warranted, but through the assessment process, it may also be determined that training, mediation, focus groups or retreats would be beneficial. Essentially, the services delivered are responsive to the needs of the organization and its people, as revealed through the assessment process.”
When doing internal workplace mediations for organizations, Morrow stresses the importance of follow-up and ongoing monitoring as an essential part of the overall success of any intervention. “It’s crucial to ensure that all the work that went into changing the culture isn’t undone in a few months as people slip back into old habits,” he adds.