Bullying, Harassment and Other Legal Issues in Mediation

Most of my workplace mediations involve an initial call from HR detailing the staffing problem that they are having. Usually it is between 2 employees, although at times it can involve a whole team. They usually view mediation as a last ditch attempt to avoid a lawsuit. This unfortunately is the wrong attitude and will generally mean that a law suit is more likely to occur. Sometimes it doesn’t pay to have an overly defensive attitude.

No organisation wants disgruntled employee to lodge a lawsuit. It valuable time, money and resources and takes the team away from their jobs. Unfortunately, we are living in an increasingly legalistic and politically correct environment where this happens more and more. As a result basic rules of communication and openness are thrown out the widow, for fear of repercussions.

Managers and HR professionals are caught in a bind between managing risk and being open and transparent with the employee. Hand over heart, I do believe that honesty and openness trumps everything, even when you are cognisant of managing IR risks.

We all have an inbuilt bullshit meter and disgruntled staff know when they are being managed. Mediation should never be used as a legalistic process, as kind of tick the box to keep the lawyers happy. It should be used as a process to dramatically improve the affected workers communication and emotions. If this is done well, everything else will take care of themselves, including potential bullying and harassment claims.

It sounds like an obvious consideration but very few managers or HR professionals when faced with a difficult staff problem really operate from this perspective.

Human resources is increasingly becoming a managing risk operation rather than value adding part of an organisation. This is the hymn sheet that most HR consultants are using when they go into small and medium sized organisations and the prevailing attitude of most HR departments in large organisations. You might be managing risk but that it about the only thing that you can manage with this attitude. Actually transforming staff (i.e., through mediation) not only manages risk but improves culture and productivity.

HR-Management-Key-Skills-300x224My advice to managers when dealing with staff problems is to completely change your approach. If the issue can’t be addressed though a meeting facilitated by you, then get someone external to come in (through consultation with HR of course) to address the issue before it turns into a bullying and harassment case or worse. It really is that simple. Process is always king.


The longer you leave it, the less likely mediation is going to work. And allow the mediation enough time to actually work, which at the minimum is 1 full day off site. Once the mediation process has been finalised you can then make a decision whether someone needs to leave the team or not. In most cases the team can continue to function in it’s original form.


Mark Korduba is a registered psychologist and Workplace Mediator

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