The question of whether mediation should be applied to workplace bullying situations comes up recurrently in discussions about the potential application of alternative dispute resolution (ADR) mechanisms to this form of abuse.
Dr. Esque Walker, a certified mediator in Texas and an advocate for the anti-bullying Healthy Workplace Bill, addresses this topic in a paper posted to the Workplace Bullying Institute blog:
Mediation is an inappropriate alternative in cases involving any type of abuse or violence such as domestic violence, child abuse, sexual assault, school or workplace bullying.
The victims or targets in these situations are at a disadvantage and are subjected to further abuse.
…The mediation process assumes that all parties involved in the mediation are “sufficiently capable” of negotiating and reaching a mediated agreement with each other as equals in the process. In cases involving workplace bullying or any type of family violence, this is a false assumption….
Esque adds a list of common reasons why mediation in general can fail. Here are the first five on her list:
• The absence of trust
• The imbalance of power between conflicting parties
• Forced or coerced mediations and/or settlements
• Fear of subsequent intimidation and abuse post mediation
These factors would apply to many targets of workplace bullying and underscore why I, too, have generally opposed using mediation in workplace bullying situations.
Dr. Walker also opposes applying restorative justice (RJ) approaches to workplace bullying. RJ practices have been developed in criminal justice settings, including structured proceedings that attempt to reconcile victim and offender.
As I suggested in a recent blog post, I’m more open to the possibility of applying RJ principles to workplace dispute resolution, which may include bullying situations. However, Esque’s piece has helped me to clarify where I stand on this, nudging me toward my so-called “aha” moment.
First, legal protections, then (perhaps) ADR
Here’s the point: Before we even consider introducing mediation or restorative justice into workplace bullying situations, we need to enact legal protections such as the Healthy Workplace Bill.
Currently in the U.S., applying any ADR mechanism to a workplace bullying scenario often would occur under the assumption that the abusive behavior is legal. This automatically tags the situation as one of conflict rather than one of abuse.
By comparison, crime victims agreeing to participate in restorative justice practices typically have the power of the criminal codes and the criminal justice system behind them, thus significantly changing the presumptions and power dynamics between them and the offenders.
In other words, the power relationships between aggressors and targets in genuine workplace bullying situations will shift significantly once bullying is declared an unlawful employment practice. That will be the time to examine what ADR mechanisms may be appropriate.