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Workplace Bullying: Why not Mediate it?

Institute for the Study of Conflict Transformation

Would you be prepared to sit down in mediation with a work supervisor or fellow employee against whom you have felt obliged to lodge a complaint of workplace bullying or psychological harassment, or with someone who has made an unwelcome and perhaps unjustified complaint of that nature against you?

Now that Quebec’s anti-workplace bullying legislation, commonplace in Europe but a first in North America, has paved the way for similar laws to be passed in Saskatchewan, British Columbia and Ontario, Canadians in the workplace are coming up with different answers to that very question.

The 2004 amendments to Quebec’s Act respecting Labour Standards (“ALS”) defines psychological harassment as: “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.” Additionally, “a single incidence of such behaviour that has a lasting harmful effect may also constitute psychological harassment.”

The overall stated objective of the ALS is to prevent psychological harassment, and where it is seen to be taking place, to put a stop to it. Failure to do so entails serious consequences for the employer. The ALS requires that the employer act with prudence and diligence, and take all reasonable measures to both protect the workplace from any harassment and to quickly put an end to it where it exists.

In order to avoid the range of sanctions for management inaction set out in the law, including reinstatement of the complainant, recovery of any wages lost, punitive and moral damages, reimbursement for the cost of psychological help, and modifying the complainant’s disciplinary record, employers initially took an exclusively legalistic approach to dealing with complaints.

This generally meant instigating a potentially long and complex adversarial process. In a first step, the complaint is reviewed to determine whether the facts alleged, if proven, could constitute the infraction of harassment. If on the face of the complaint, a case can be made out, an investigator is called in to interview the immediate parties, as well as others having witnessed the alleged behavior, in order to determine if the complaint has been substantiated. In the event of a negative determination by the investigator, it can be contested by the complainant in a subsequent hearing, either before the Labor Relations Board (for non-unionized personnel) or before a labor arbitrator (for union members).

Results of this initial legalistic approach have provoked a considerable degree of dissatisfaction within both management and the workforce. Since it is the employer who has the onus under the law to take all reasonable measure to prevent or end harassment, it follows that the financial cost of the initial review, investigation, and arbitration is to be borne by the employer. Although management can feel vindicated that only a small number of Quebec’s average 2,000 harassment complaints filed annually are determined to constitute harassment in the eyes of the law, the expense incurred to attain these findings is seen as a serious ongoing burden.

For the complainant and respondent, as well as for others in the workplace impacted by the bullying complaint, a determination or finding that the alleged behavior falls, or as in most cases, does not fall under the legal definition of harassment, doesn’t in itself help to redress the disturbed workplace environment. It can in fact, despite intentions to the contrary, provide the opposite result.

Where a complaint is proven, the respondent, if he or she has not been fired, will often continue to bear a stigma; so too, paradoxically, can a successful complainant. Where a complaint has been dismissed, the unlucky complainant can be scapegoated, and, despite being cleared of allegations, a respondent can still be surrounded by an aura of suspicion.

Whatever the outcome, the delays involved, up to 16 months for a formal hearing before a labor arbitrator, make for a situation where things can go from bad to worse for all concerned, not least for the complainant. Moreover, co-workers generally resent being obliged to testify one against the other in investigations and hearings, with the result that animosities can harden, fissures widen, and opposing clans crystallize.

Since all these factors do not make for a healthy and productive workforce despite the considerable investment in time, energy and money involved, management and unions in Quebec are looking more and more to mediation in order to fulfill their legal obligation to take all reasonable measures to prevent and put an end to workplace harassment.

We know that there are various approaches to mediation, including evaluative, facilitative and transformative models, to name the three major tendencies in North American practice. Each proceeds from its own principles, giving rise to its own practices, all of which have a direct bearing on the appropriate mediation choice for dealing with complaints of workplace bullying.

In transformative mediation, mediators specially trained in non-directive communication techniques accompany participants in an open-ended conversation allowing them to discuss what each one considers important for them to be understood and to understand the other party, gaining in the process enhanced self-empowerment and inter-party recognition. Developing these twin capacities within the mediation conversation enables participants to transform the quality of their interaction, from negative and destructive to positive and constructive, permitting not only a clarification of the underlying conflict situation, but the emergence, wherever possible, of acceptable and lasting outcomes.

Ariane Bilheran, French psychologist and author on harassment issues, recently wrote me to indicate that where systematic “programmed destruction” of another person has been attempted, mediation should not be proposed so as not to put the victim at further risk. As a transformative mediator active in this field, I would take a different view. Rather than supplanting party choice by taking options off the table beforehand, I would prefer to leave that decision in the hands of the parties themselves in accordance with the basic principle of party self-determination.

Safety measures may be set up between the complainant and mediator, such as staggering participants’ arrival and departure times to avoid confrontations outside the mediation room. In a transformative setting, each participant holds a veto power over the way in which the conversation is to be conducted, backed up by the power to withdraw at any time from the process. If a participant becomes uncomfortable or feels that the other participant has crossed a line, he or she can request a private meeting with the mediator, where a response can be rehearsed to put the other participant on notice that if the unwelcome conduct continues, participant will end the session or terminate the mediation. Through this process of self-regulation, no participant is ever forced to take part in something that does not suit him or her.

Provided the complainant has been able to gain a clear understanding of the various approaches to mediation and has had the opportunity to compare the chosen type of mediation to adjudication, with its inevitable delays, stresses and disturbance of the workforce, that person decides, for his or her own reasons, that mediation is at least worth a try, should that party then be denied the power of choice?

                        author

John Peter Weldon

John Peter Weldon is a Canadian mediator and attorney, practicing in the French-speaking province of Quebec. After a 15-year career in civil and criminal litigation, he started mediating in 1993 with the transformative model described in The Promise of Mediation in mind. After mediating civil and family matters for 15 years, he began specializing… MORE >

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