By Todd Humber
Disputes in the workplace are inevitable. From contract misunderstandings to workplace harassment claims, they can be financially and emotionally taxing for employers and workers alike.
In the world of HR Law, we often speak of mediation in the context of a legal proceeding. However, there is another type of mediation that can be extremely beneficial. Relationship or workplace mediation can play a major role in defusing conflict before it escalates to the level of a costly and time-consuming legal dispute, offering a proactive approach to managing tensions and ensuring harmonious relationships among employees.
Stuart Rudner, an employment lawyer and mediator and founder of Rudner Law and Rudner ADR, said workplace mediation, dispute mediation and arbitration can be effective ways to approach conflict in the workplace.
“Workplace or relationship mediation is informal and designed to help ongoing relationships, as opposed to the dispute mediation, where the relationship is usually done” he said. “You don’t have a judge and no decision or award can ever be imposed on you.”
Arbitration, on the other hand, is even more formal because the arbitrator essentially takes the role of a judge.
“There will be a hearing with evidence presented and, at the end of the day, there will be an award or judgement from the arbitrator imposing a final decision on the parties,” said Rudner.
This article, the first part in a series, takes an in-depth look at relationship and workplace mediation.
Working with a mediator
An experienced mediator can bring a lot to the table to resolve workplace disputes. They can bridge gaps, foster understanding, and guide a resolution beneficial to all parties.
Moreover, the process provides a conducive environment for dialogue, understanding and compromise, he said. Workplace disputes aren’t just transactional — they involve relationships, emotions and even career trajectories.
It’s not surprising that workplace disagreements can get heated. In the 1997 Wallace v. United Grain Growers ruling, the Supreme Court of Canada noted that “for most people, work is one of the defining features of their lives.”
A good mediator can put things in perspective, preserving relationships, reputations, and morale among the parties, said Rudner.
Bullying and harassment
Mediation is useful for all sorts of workplace conflict, but the most common scenarios often relate to allegations of bullying or harassment, said Rudner.
“An allegation of harassment doesn’t mean you have to fire someone,” he said, noting the high bar for just cause dismissal in Canada.
“There might be a finding that there wasn’t harassment, but clearly there is an interpersonal conflict,” he said. “Maybe there was a lack of civility, or poor management skills. Even if there was harassment or bullying, that may not amount to just cause for dismissal, but it does mean that there is a relationship issue to be addressed. Amediator can work with both sides to understand these underlying issues and try to find a way for them to work together.”
It doesn’t mean they will become best friends, but it’s possible to create rules, boundaries and processes that allow them to work together effectively, he said.
How it works
Once an employer decides to go the workplace mediation route, the first step is to communicate clearly this is not a disciplinary exercise.
“You need to get people’s defences down so that they’re open to discussing how to work together and resolve the situation,” he said.
Employers should also have a backup plan prepared in case there is no resolution to the dispute.
“If we go through the process, and I’ve determined that there just really isn’t a way to have these two people work together, how else can you proceed?” said Rudner.
That could involve transferring a worker to a different department or a different location if possible. Information like that can be helpful for the arbitrator to have during the discussion, he said.
“You don’t use it as a threat, but just to give people the context. I can explain to them that if we can’t resolve this, these are some possible outcomes,” he said. “And one of them is that they’re not going to be able to work in that department or location anymore. It helps with the motivation to resolve the dispute if they understand the alternative.”
“It’s always satisfying when I can help parties achieve a resolution at mediation; even more so when I can help them develop or restore a healthy working relationship”.
For more information about Rudner Law’s Alternative Dispute Resolution, visit https://www.rudnerlaw.ca/alternative-dispute-resolution/. Stuart Rudner can be reached at 416-864-8500 (phone or text) or [email protected].
