Mediate, Investigate, Litigate or leave it alone?

Workplace complaints and disputes between staff are inevitable in any busy workplace. The challenge for HR and Management is to identify how best to deal with each complaint. Not every complaint can be or should be managed in the same way, and it is important to have a set of principles to guide you. Here are my tips on this very important topic.

Is your team equipped with the skills to effectively navigate workplace conflicts? From tailored training sessions and one-on-one coaching to mediations and reflective practice, there are numerous ways to build conflict resilience in your team. Let’s discuss your options: Contact | Shiv Martin

Navigating Workplace Complaints: A Practical Guide

As a mediator and dispute resolution consultant, I often find myself supporting HR practitioners and people managers with decision making processes around how to respond to workplace disputes and complaints. In many cases the choice is between mediating informally or conducting a formal investigation/ grievance process. In some cases, both options can be explored.

The decision to investigate or mediate a complaint isn't just about ticking a box; it's about making a choice that will influence staff expectations and the broader workplace culture.

Let’s walk through a practical guide to help you navigate this process effectively.

Safety first:

Workplace health and safety (WHS) considerations must be your primary consideration when dealing with workplace complaints. Before you dive into assessing whether to investigate or mediate, it’s critical to ensure that all parties involved are safe and that the process you choose won’t exacerbate any existing risks. Whether it’s emotional safety during a mediation or physical safety in more severe cases, addressing these concerns should be your first step. Once you’ve ensured that safety is accounted for, you can then move forward with confidence in choosing the best approach for resolution.

Understanding the Types of Workplace Complaints

First off, let’s get clear on the types of complaints we’re dealing with. Generally, they fall into three categories:

1. Decisions or Directions Impacting Employees: Think of issues around pay, working conditions, or access to opportunities.
2. Interpersonal Behaviour Issues: This includes complaints about rudeness, bullying, harassment—anything that gets under people’s skin.
3. Policy or Law Breaches: These are the big ones—sexual harassment, misuse of resources, conflicts of interest.

Often, these complaints aren’t as clear-cut as they seem. They overlap, they intertwine, and they can sometimes point to deeper conflicts or cultural issues in the workplace. Understanding what you’re dealing with is the first step in choosing the right path.

The next step must be to ensure that which ever way you go you have a clearly written and accessible policy to explain the steps you will take. The Fair Work Ombudsman website has some great tips on establishing effective workplace dispute resolution policies: Effective dispute resolution - Fair Work Ombudsman

I have set out the steps below that you would expect to see in any dispute resolution policy.

Step 1: Assess the Complaint Thoroughly

Before jumping into action, take a moment to assess the situation. Here are some questions to guide you:

• Who is making the report? Is it the person directly affected, a bystander, or a whistleblower?
• How was the complaint made? Was it a quick chat, a formal written grievance, or something in between?
• Has this issue been raised before? If so, what’s the history?

Step 2: Weighing Investigation vs. Mediation

Now, let’s talk options. Both investigation and mediation have their place but knowing when to use each is key.

Investigation:

• Pros: Ideal for serious misconduct or when legal lines might have been crossed. Helps get the facts straight, especially in situations where stories don’t match up. Can uncover deeper issues in the workplace culture that might not be immediately obvious. Provides a clear, documented resolution, which can be crucial for minimising organisational liability.
• Cons: It’s time-consuming and can be expensive, particularly for complex cases. Relationships can be strained or even broken by the process. It’s stressful for everyone involved and can lower morale across the board. It is also resource intensive and can often set a series of events in motion that lead to much more significant legal action.

Mediation:

• Pros: Confidential and flexible—it allows the parties to have a say in how things get resolved. It’s quicker and often less costly than an investigation. Especially useful when ongoing working relationships need to be preserved or mended.
• Cons: Not suitable if there’s a significant power imbalance or if someone feels unsafe. There’s no guarantee of an outcome—mediation is voluntary and relies on goodwill from all sides. May not be the right tool for tackling broader organisational issues. Further, if there is clear evidence of misconduct or a breach of legal obligations then a mediation will not meet the organisation's obligations to investigate the relevant matters.

Step 3: Preparing for a dispute resolution conversation

If you’re leaning towards mediation, it’s crucial to set the stage properly. You’ve got two main options: confidential mediation or a facilitated team discussion. Facilitated discussions are a bit more involved—they’re about not just resolving the immediate interpersonal issues, but also repairing and rebuilding relationships and planning for the future. In either case it is important to:

• Clarify the process: Make sure everyone knows what to expect, what is expected of them and the importance of confidentiality.
• Build trust: The parties need to feel that they’re in safe hands and that the process is fair.
• Manage expectations: Be clear about what mediation can achieve and ensure everyone is on the same page.

Step 4: When to Call in External Help

Sometimes, it’s best to bring in an external mediator or investigator. Here’s when that might be the right call:

• When there’s a conflict of interest: If there’s any perception of bias by management or HR, an external expert can ensure impartiality.
• When safety is a concern: If someone feels unsafe, an experienced external mediator can handle the situation with the sensitivity it requires.
• When you need expertise and additional resourcing: An effective mediation or facilitation process takes time and specialist training in dispute resolution. As with many of the other services you organisation contracts out, it might make better business sense to outsource this work rather than manage it inhouse on top of the business as usual tasks.

Real-World Examples: Lessons Learned

Let’s take a look at how this plays out in real scenarios:

1. Successful Facilitation: Two employees with a longstanding conflict were able to reach a resolution through a confidential mediation. Extensive preparation through personalised conflict coaching was key here, helping both parties enter the process ready to make meaningful changes.
2. Unsuccessful Mediation: A team with deep-rooted conflicts and a culture of complaints wasn’t ready for mediation. Power imbalances and lack of genuine motivation from one party made mediation inappropriate. The grievances raised with HR and Management required investigation and a formal response.
3. Investigation Pitfalls: An investigation into a bullying complaint found no misconduct but highlighted that the real issue was workplace culture and potential discrimination. A more curious, open approach at the start might have uncovered these factors sooner, possibly avoiding the need for a formal investigation.

Final Thoughts

As a people manager or HR Officer your approach to handling workplace complaints will have a huge impact on your organisation's culture. By thoroughly assessing each situation, weighing the pros and cons of investigation versus mediation, and preparing effectively, you can help foster a healthier, more productive workplace. And remember, when in doubt, it’s okay to seek external advice. The goal is to choose the right path that benefits not just the individuals involved, but the entire organisation.

By staying thoughtful and strategic, you’ll be well-equipped to manage workplace complaints with confidence, ensuring the best outcomes for everyone involved.

The earlier you access help the better in these situations as the first few steps you take in a dispute resolution process can be the most important.

I am currently assisting a number of workplaces to navigate workplace conflict. If you would like a confidential discussion to discuss the suitability of mediation or to refine your in house dispute resolution processes please get in touch: [email protected]

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