– by Shannon Murphy, Workplace Investigator at Insight HR and MII Accredited Mediator
Have you ever had an employee walk into your office and say, “I can’t work with them anymore”?
Perhaps there has been a disagreement between two colleagues, or the relationship between a manager and an employee has deteriorated to the point where even the simplest conversation becomes difficult. One person feels undermined, the other feels unfairly treated. Both have different accounts of what has happened, and neither feels the other is listening.
Our immediate question is often, “Do we need to investigate this?”
Sometimes, the answer will be yes. There are circumstances where allegations need to be examined properly, facts established, and formal procedures followed. However, not every workplace dispute is best addressed by starting an investigation.
It is worth taking a step back and asking what the organisation is actually trying to resolve. Is there an allegation that needs to be investigated, or has a working relationship broken down to such an extent that the people involved no longer know how to work together?
The answer matters because the approach taken at the outset can shape what happens next.
Investigation or Mediation: What is the difference?
There is a good reason employers turn to formal procedures when workplace difficulties arise. They provide structure, help ensure fair treatment and are essential when allegations require proper examination.
The WRC’s Code of Practice on Grievance and Disciplinary Procedures recognises the importance of fair procedures. It also provides that, as a general rule, attempts should be made to resolve grievance and disciplinary issues at an appropriate level, including informally where possible.
Informal resolution should never be confused with ignoring a complaint or hoping a problem will disappear. It means considering whether there is a suitable way to address the issue before moving immediately to a formal process.
This is where mediation can have a valuable role.
An investigation is concerned with establishing the facts in relation to defined allegations or issues, generally on the balance of probabilities. Its findings may inform decisions under a grievance or disciplinary procedure, or lead to further management action.
Mediation has a different purpose. It is a voluntary, confidential, self-determining process where an impartial, neutral mediator assists individuals in conflict discuss their difficulties and explore whether and how they can agree on a way forward.
It is important to understand this distinction. An investigation may establish what happened, but it will not necessarily resolve the difficulties that brought the parties to the HR office in the first place.
And sometimes, both processes are needed. The key is to recognise what the situation calls for, rather than automatically reaching for the same response every time concerns are raised.
How to determine what is causing workplace conflict
Consider a manager and an employee whose relationship has been deteriorating for several months. The employee feels constantly criticised and believes their concerns are dismissed. The manager, meanwhile, feels that reasonable feedback is being met with resistance and that managing the employee has become increasingly difficult. Eventually, the employee makes a complaint.
There may be specific allegations that need to be investigated, and those allegations must be dealt with appropriately. Alongside that, however, there may be a wider problem. Communication has broken down, both parties feel misunderstood, and neither has much confidence that the situation can improve.
An investigation may establish what happened during particular interactions. It may identify conduct that needs to be addressed. Even where the findings are clear, the manager and employee may still have to face each other on Monday morning, with little idea of how to move forward.
A finding of fact does not automatically restore trust or repair a working relationship.
This is one of the reasons mediation deserves greater consideration. Where appropriate, it can give employees the opportunity to address the practical difficulties that remain, either as an early intervention or after a formal process has concluded.
The question for HR is not simply whether there is a complaint to investigate. It is whether establishing the facts will, on its own, address the problem the organisation is facing.
How do you know when to conduct an investigation, mediation or another approach?
Workplace disputes can sometimes be treated as though the only options are to do nothing or commence a formal investigation.
In reality, there is plenty of ground between those two positions. Depending on the circumstances, a management conversation, coaching, a facilitated discussion or mediation may be appropriate.
The difficulty, one we see commonly on the Workplace Investigations team, is that intervention can come quite late. By the time a complaint reaches a formal stage, the individuals involved may have spent weeks or months becoming increasingly frustrated with one another. Each may have developed a firm view of the other’s behaviour and intentions.
Once that happens, even ordinary workplace interactions can become difficult. A comment intended as constructive feedback is interpreted as criticism, or a request for clarification is taken as a challenge. The same disagreements continue, with each person convinced that the other is responsible.
Early intervention will not resolve every dispute, and mediation is not suitable for every situation. Recognising a problem before positions become too entrenched can, however, give an employer more options.
Five questions worth asking before starting an investigation
When a workplace complaint comes to HR, a short pause to consider the circumstances can be worthwhile. The following questions may help identify the most appropriate response.
- Is there a specific allegation that needs to be established as fact?
Where there are serious allegations of misconduct, bullying, sexual harassment, discrimination or other matters requiring formal consideration, an appropriate formal process may be necessary. Mediation should never be used to sidestep an employer’s responsibilities or avoid dealing properly with allegations.
- Will the people involved need to continue working together?
If the individuals are part of the same team or have an ongoing working relationship, resolving the immediate complaint may not be enough. Consideration may also need to be given to how they will communicate, manage disagreements and work together in the future.
- Is the main issue conduct, or has the relationship broken down?
There are situations where a clear allegation of inappropriate conduct needs to be examined. Other disputes are more complicated, involving different perceptions, expectations and communication styles that have gradually damaged the relationship. Understanding the nature of the problem helps inform the choice of intervention.
- Would establishing what happened resolve the underlying problem?
An investigation can provide clarity and may lead to appropriate management action. It does not necessarily address the reasons two people can no longer work effectively together. Where that remains a concern, a further intervention, such as mediation, may be needed.
- Are the parties willing to engage in a meaningful conversation about the future?
Mediation is voluntary, and participants need to be willing to genuinely engage and participate with the process. They do not have to agree on everything that has happened or accept responsibility for the entire dispute. However, they do need to be prepared to consider whether there is a workable way forward.
These questions are not a replacement for reviewing a complaint, considering the relevant policies or taking advice where necessary. They are a practical starting point when deciding how best to respond.
What if employees are hesitant to agree to mediation?
Employees can be wary of mediation because they think agreeing to participate might be taken as an admission of fault. Others worry that the process will involve being told to apologise or simply get along with someone they find difficult.
That is not what mediation is intended to do.
The mediator does not decide who is right, determine whose account is more credible or impose a solution. Their role is to help the parties discuss the issues in an open, structured and impartial setting, with the aim of reaching an outcome they can both accept.
The discussion might focus on communication, expectations, particular behaviours, professional boundaries or how future disagreements will be handled. What is agreed will depend on the circumstances and on what the parties consider realistic.
One of mediation’s real strengths is that it allows the parties involved to work towards arrangements that reflect their actual working relationship in a confidential and safe setting. Rather than concentrating solely on whether a particular allegation is substantiated, the conversation can address what needs to change for each of them to work together more effectively.
It is also important to note that a party cannot be penalised or disciplined for refusing to participate in workplace mediation, it is entirely dependent on mutual agreement.
For an employer, that can be an important part of resolving a workplace dispute. Dealing with a complaint and helping people establish a workable relationship are not always the same thing.
What happens if mediation does not work?
This is a query we get asked regularly. Mediation is not a guaranteed solution. Some people will not wish to participate, and some disputes cannot be resolved through discussion. Suitability needs to be considered carefully, particularly where serious allegations, power imbalances or other concerns may make mediation inappropriate.
If mediation does not lead to an agreement, other options may remain available. The important point is that the decision to mediate should be based on the circumstances, not on an assumption that mediation is always preferable to an investigation.
There is also a practical side to consider. Workplace conflict takes up management time, requires HR involvement and can affect morale, productivity and the wider team. As a dispute continues, the working relationship can become increasingly difficult to repair.
I have seen how easily people can become fixed in their view of a colleague. Once that happens, interactions are often interpreted through the lens of what has gone before. Each new disagreement reinforces the belief that the other person is the problem.
Mediation can provide an opportunity to step away from that cycle. The parties may never agree entirely on the past, but they may still be able to agree on how they will deal with one another in the future. For some workplace disputes, that is a worthwhile outcome in itself.
Choosing the right response to workplace conflict
Before commencing an investigation, it is worth asking one final question: What problem are we actually trying to solve?
For employers, the objective should be more than processing complaints. It should be to respond to workplace conflict fairly, proportionately and in a way that addresses the issues that actually need to be resolved.
Sometimes that means investigating. Sometimes it means having a difficult management conversation. In other situations, an independent mediator may be able to help people have a conversation they have been unable to have themselves.
The question is not whether mediation is better than investigation. It is whether you are choosing the right intervention for the problem in front of you.
If you’re unsure which approach is most appropriate, we can help you consider your options and determine the best way forward. Contact us at Insight HR to discuss your needs and explore how mediation may help.
