“Can workplace bullying situations be mediated?”

Can workplace bullying situations be mediated?

This is a recurring question that came up again in the aftermath of a talk I gave yesterday on workplace bullying at the annual workshop on Humiliation and Violent Conflict, sponsored by the Human Dignity and Humiliation Studies Network and hosted by Columbia University in New York City.  I have meant to post about this question in more detail, incorporating the many discussions that have taken place over it among experts in workplace bullying and dispute resolution, but for now let me give you my short answer:

I think it’s necessary, in this context, to distinguish between workplace bullying and lesser forms of workplace incivility.

Workplace bullying typically involves an abuse of power accompanied by malicious intent, enabled by differences in organizational rank and privilege, dint of personalities, or some combination.   Attempts to mediate such situations subject targets to even more abuse, and wrongly suggest that somehow we can split the differences between the parties and arrive at a fair resolution.  Just as we would not attempt to mediate child abuse or spousal abuse, we should not attempt to mediate work abuse.

However, lesser forms of incivility, where power imbalances are not as pronounced and intentions are not malicious, may well benefit by a mediation approach.  It can mend fences, reduce stress, smooth over working relationships, and perhaps even keep parties out of court.

Of course, it’s not always easy to differentiate between abusive bullying and other forms of employee discord.  Drawing those lines in an academic, definitional sense is hard enough; applying those distinguishing characteristics in real life is even harder.  I won’t attempt to tackle that subject here.

I’ll have more to say about the excellent workshop itself in a later post. For now, suffice it to say that I am heartened by the work of so many change agents in endeavors related to human dignity.

Link to Human Dignity and Humiliation Studies Network: http://www.humiliationstudies.org/

26 responses

  1. Excellent post.

    I agree with your distinction between bullying and incivility. I too would have a difficult time mediating with a bully. In my experience, the bully would appear contrite and conciliatory with neutral (an outsider) and then return to retaliation later. As you rightly point out, however, the problem is determining whether you are hearing about a bully or mere incivility.

    • Yes…if we could develop a magic test to distinguish between bullying and lesser brands of incivility, we’d help a lot of people out there!

  2. I have followed your work for years and I’m grateful you/we are finding more acceptance for naming and dealing with this issue.

    But, I disagree with you about mediation. I do not believe mediation, as its presented as a problem-solving, solution-based practice is a good practice for dealing with workplace bullying. The practice of so-called transformative mediation or restorative justice could be ideally utilized in these situations…as they have in domestic violence and minor criminal victim/offender situations.

  3. The test may lie in the “eye of the beholder” because I believe one factor in defining bullying is the effect on the target. Although another factor is a pattern – likely a pattern of incivilities.

    I have grappled with this question of whether you mediate bullying. I’m not sure I quite agree with you David, about whether bullying can be mediated. I think it might depend on how you define mediation – if a negotiation, in which you “split the difference” and come to a resolution is the necessary outcome than I would likely agree with your conclusion.

    I have had situations, not many, in which the target wanted an oppportunity to communicate to the alleged bully what specific behaviors were offensive and make a clear statement that s/he wanted the bullying, (i.e., these specific behaviors) to stop. Previous attempts at communication had been unsuccessful – like many attempts at communication when conflict is at its peak. The alleged bully was willing to listen because s/he wanted a resolution to the conflict.

    I can’t say that everything was resolved after the parties left my office but the mediation or faciliated discussion (which is the term I use more often) met the interests of the target and also of the bully.

  4. Mary and Wendy, thank you for your thoughtful responses and for pointing out some of the nuances not addressed in my post. This topic has been one of considerable debate within the emerging community of folks familiar with the dynamics of bullying, and your comments provide important counterpoints and alternatives. Best, David

  5. This is the first I’ve heard that bullying “typically” is “accompanied by malicious intent.” In my experience with discrimination cases, it is very hard to show intent, so I’m curious as to how you can draw this conclusion. As to whether or not to use alternative dispute resolution with bullying cases, I would tend to try. I once thought that sexual harassment cases shouldn’t have ADR tried on them, but over time have changed my views after talking and working with others, including victims. Especially if transformative mediation is used, where the mediator tries to teach the parties how to engage in civil discourse, using ADR would be better than letting the matter fester. Since there are practically no laws prohibiting bullying that is not otherwise illegal, there are very few avenues of redress for the employee who feels bullied. ADR is one of the few avenues that may be available. Let’s not foreclose it.

    • Marc, thank you for your comment.

      I think you’ll find a fair amount of support for the proposition that a key dividing line between bullying and lesser forms of worker mistreatment is the presence of malicious intent, i.e., the desire to inflict psychological harm or to harm someone’s career or ability to make a living.

      Several months I posted an entry describing the work of Teresa Daniel, who has published a book on bullying for employers and wrote her dissertation on bullying that echoed this position:

      https://newworkplace.wordpress.com/2009/06/16/tough-boss-vs-workplace-bully/

      As with discrimination claims, offenders rarely announce their intent. But also like discrimination claims, we can infer intent from actions. That’s not as easy with bullying for a variety of reasons that we’re both aware of, but it’s far from impossible.

      My guess is that many of bullying-like situations that may be amenable to mediation might fall more accurately into the realm of incivility and/or bad management. However, once it becomes malicious, especially when the tormenter has the ability to negatively affect someone’s career or livelihood, the best solution is to remove the tormenter’s ability to mistreat the target.

  6. Actually, in workplace discrimination claims, we don’t infer intent from actions. There are a variety of (difficult) ways to show intent, but that’s not one of them. In regard to “the best solution is to remove the tormenter’s ability to mistreat the target,” I’m not clear on what that means. If it means firing the bully, that’s too facile a solution, and not likely. In regard to Teresa Daniel’s work, I can’t find anything in it in which she proves the existence of malice. Apparently, she relies upon interviews with perceived victims. That these interviews are odd is shown by the fact that 80% (!) of HR managers say they’ve been bullied. If anyone should know how to deal with bullying, HR managers should…As I note in my own work on employment discrimination, much is a perception. I suspect that much of the malice aspect of bullying is also. In your own proposed legislation, I believe that you require that the employee bear the burden of proof in showing that the bully is malicious, so I think you understand the difficulty in proving malice.

  7. First, thank you for all your work in this important area.

    I agree that there are some situations involving workplace incivility that can possibly be addressed through mediation. And, I also agree that making a delineation between “mediate-able” and “nonmediate-able” situations would be extremely difficult – primarily because it can be challenging for both abusers and victims to get through their varying layers of protection to fully comprehend what’s really happening.

    Mediation of workplace bullying/abuse situations could convey the perception that the abuser should have a place at the table – as if abuse is negotiable.

    I like the idea of providing professional coaching for the abuser and then using the services of a mediator/facilitator to assist in moving the parties forward in a productive manner – with or without the abusive person.

    Thank you again.

    Debra Healy
    agree2agree
    Healy Conflict Management Services

  8. Perhaps we will have to do what we did with police cars and have cameras in every office to catch offenders–either Very Bad Bullies or Wolf-Crying Victims.

  9. Marc, actually we do have to infer intent from actions in most disparate treatment claims. Title VII of the Civil Rights Act — the main federal employment discrimination law — requires that in order to establish disparate treatment, you have to prove that discrimination was a motivating factor behind a defendant’s action. Since very few defendants announce that they intend to discriminate, a judge, jury, or hearing officer is left to infer intent from actions.

    Debra, it’s good to hear from you again! Yes, coaching followed by some type of facilitation may be an answer in some cases. I do think there is plenty of room for ADR folks to play an important role in all this. When the situation has crossed from “dispute” to “abuse,” well, that’s where the more nuanced approach, with frankly some taking of sides, may be necessary.

    Again, I fully understand the difficult of applying these distinctions in live cases. In interpersonal employment disputes, simply figuring out what happened can seem next to impossible in many situations!

    David

  10. Disparate treatment is by definition intentful. Perhaps you are confusing this method of proof of discrimination with disparate impact, where inferences have to be made from evidence, including statistical disparities. An example of the plainest type of intent is “No Irish need apply.” This type of animus is still plainly expressed sometimes, especially against women and some people with disabilities. In disparate impact cases we “infer” that discrimination was the cause of the disparity, and that, absent discrimination, it would not have happened. To show bullying, I would suggest that a similar test be used as with sexual harassment cases– the requirement to show unwelcomeness, severity, prevasiveness, frequency, egregiousness, changed working conditions, adverse impact, etc. The concept of malice, especially using a dictionary definition, does not have to be reached, and in fact confuses the issue. I suppose a tort for emotional harm could be raised. But without a specific protected class, as the civil rights laws identify, adding “malice” just makes anti-bullying laws into something like criminal laws, where the standard of proof is extremely high.

    • Marc, I do understand the differences between disparate treatment (intentional discrimination) and disparate impact (facially neutral practices that have a discriminatory impact). The point is that merely alleging disparate treatment does not free the employee from proving intent; in fact, the employee loses if s/he cannot establish that discrimination was a motivating factor.

      The legislation I’ve written draws heavily on legal standards to prove hostile work environment in sexual harassment cases and, somewhat reluctantly, also requires a showing of malicious intent in order to stave off weak/frivolous claims. That’s a compromise reached only after acknowledging the potential for an avalanche of marginal cases if the proof bar is set too low.

      If you’d like to read about the limits of using intentional infliction of emotional distress in bullying cases, my law review article, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection” goes into all the bloody detail. You can download it from the link in the “Free Articles” page of this blog.

      Best, David

  11. Thanks for your thoughtful comments, David.

    A few months ago, I co-mediated an employment case in which the only information the mediators had prior to the mediation was that the situation involved “interpersonal conflict.”

    It soon became clear to me that we might be dealing with workplace abuse. I suggested a caucus with my co-mediator. We then caucused with the parties. We decided to explore the matter a little further but I wasn’t entirely confident we were doing the right thing.

    While we didn’t name the behavior, I think the abuser may have begun to understand the impact of his conduct on his co-worker. In that sense, the victim seemed to feel at least somewhat validated. We were able to reach some agreements as to what types of behavior were definitely not acceptable.

    These are definitely tough cases and mediation practitioners need to tread carefully.

    I have so much respect for your work. Thank you for time.

    Take care.
    Debra

    • Debra, thank you for your kind words and for sharing your experience in dealing with these situations as a mediator. You may have the makings of your own article on this topic — and you should feel free to take issue with me! Your handling of these cases from in the trenches would add a valuable perspective.

      Heh, I tell my law students that learning the law, as difficult as it may seem now, will be a piece of cake compared to sorting out what happened in a particular employment dispute. In situations that include allegations of bullying behavior, this is often the case!

      Best, David

  12. Hi, David –

    My dream job is fulltime mediator/facilitator – but, I’m not quite there yet in terms of making that my sole source of income.

    My 40+ hour/week job is as a litigation employment paralegal working primarily in the area of employment civil rights(my undergrad degree is in Legal Studies; my MS in in Conflict Management/Dispute Resolution). It’s my daily experiences in the “legal trenches” that motivate me to explore alternatives to litigation.

    I’ve been enjoying the discussion of disparate treatment and disparate impact. 🙂

    I look forward to your next article/post/etc.

    Debra

  13. Great post! I really like your distinction between bullying and incivility. It might not be long until these issues are dealt with in court. Massachusetts is introducing a law that would allow targets to take legal action against bullies (www.questarblog.com).

    • Thanks for your comment. If you’re in Massachusetts or any other state that is considering the workplace bullying law, I hope you’ll help to support it. I’m the author of it, and we just held a meeting last night in Boston to discuss our Mass. advocacy strategy. You’ll find other posts about it on this blog!

  14. Pingback: Workplace Bullying: Applying Psychological Torture at Work « The things that make me think!

  15. Hi I have recently been bullied at work by a fellow worker and I have agreed to mediation. It was indirect bullying that i was subject too but I not sure how this mediation will go. Can anyone give me some pointers on how to phrase my sentances (words) so that I will not get flustered on the day when trying to tell my side of the story? thanks

  16. I went to three mediations and four depositions. The Attorney Generals office sent me to three expert witnesses. Sometimes you learn that they are not there to mediate the case and resolve the issues. Sometimes you learn the hard way that they intend to cause you further harm to get you to back off.

    As my attorney told me, the least said can be the best thing because you do not give them ammunition to use against you.

    What helped me was to document everything, e-mail your bully for clarification on what they want and their expectations.
    learn the policies and job descriptions of your human resource personnel and the person bullying you. Only speak the truth and have your documentation to back up your statements

  17. Pingback: On mediating bullying in academe « Minding the Workplace

  18. Pingback: Bullying, incivility, and conflict resolution at work « Minding the Workplace

  19. Thank you for your work David, but as an employee at a public school system in MA. I was continuealy bullied for over 10yrs by my boss and was known about by many includeing the superintendent, and union and nothing was done about it . Now after nearly 2yrs of leaveing after 26yrs of employment im continuely seeing doctors, and taking medications. no job, no money, dwindleing health and no one to help me. As a 57yo male, too young to retire, what to do? an by the way the superintendent, and my ex boss have been fiered after the fact now what do I do? thanks for listening

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