Mediation instead of more regulation

by 04 Feb 2013

Michaela Moloney investigates whether the development of a trial mediation service, suggested by Standing Committee on Education and Employment, may be a tool to prevent workplace bullying.

Seldom does a day go by without the newspapers carrying another story about workplace bullying. Bullying it seems is not confined to particular industries or to particular types of workers. Rather it occurs indiscriminately in workplaces, occurring among both white and blue collar workers and affecting both large and small organisations. Bullying is, without question, one of the key issues facing employers in Australia at the moment.

This was recognised by the Australian government in May 2012 when the House of Representatives Standing Committee on Education and Employment was charged with conducting an inquiry into workplace bullying.

Late last month the Committee tabled its report into workplace bullying entitled "Workplace Bullying - We just want it to stop".

The report received significant publicity due to its recommendation that regulations be introduced imposing minimum standards of action on employers to minimise the risk of bullying in the workplace. The unions have supported such a move while employer groups have cried foul and make the point that the area is over regulated as it is and additional obligations will only confuse matters.

Amid this chorus, other key recommendations made by the Committee have gone largely unnoticed. One such recommendation is the development of a trial mediation service as a tool for early intervention in workplace bullying.

Mediation has traditionally been a fairly underutilised tool where complaints of bullying arise. Instead in more recent times there appears to have been an increase in employers utilising workplace investigations as a first step in bullying complaints. Of course, formal investigations do have their place, particularly where allegations of serious bullying have been raised. However, in many circumstances conducting a workplace investigation can take weeks and sometimes months to complete, costs tens of thousands of dollars and often end up in a situation where neither party is content with the outcome and the parties' positions have been further polarised.

By way of contrast, mediation as an early intervention tool can offer the parties a quick, cost effective and flexible process for resolving complaints of bullying behaviours before those behaviours escalate.

Whether or not a particular matter is appropriate for workplace mediation needs to be determined on a case by case basis. It must be recognised that mediation will not always been be the most efficient tool for the resolution of a bullying complaint. There will be cases of workplace bullying where the imbalance of power is so profound or the conflict and bullying so advanced that attempting mediation with the parties will not be appropriate and may cause further damage to the complainant.

However, in other circumstances, particularly where the offending behaviour has recently commenced, and the parties are willing to agree to participate in mediation, the process offers an effective way for an employer to address the behaviour and for parties involved to seek to reach some kind of resolution.

First and foremost, workplace mediation means early intervention, allowing for the ventilation of issues before there has been an irretrievable breakdown in the relationship. This is in contrast to a resolution imposed by a court or tribunal which may not occur until one or two years after a complaint is lodged.

In the right circumstances, the mediation process can be an empowering experience for the complainant. Unlike a court hearing or arbitration, where a decision is imposed upon parties, at mediation the parties retain control of the process and this allows the complainant to have significant input into how a matter is resolved.

The mediation process is also a flexible one where a trained mediator can manage behaviours and utilise techniques such as joint sessions and private sessions to ensure that one party is not being disadvantaged in the process. The process also offers flexibility allowing the parties themselves to develop innovative resolutions that address their individual needs.

Although the use of a trained mediator comes at a cost, this cost is significantly less than the costs that would be incurred by parties if the matter proceeded to litigation. For employers, an early resolution of a bullying complaint also saves on the indirect costs associated with unresolved complaints such as absenteeism, reduced productivity and increases in staff turnover.

Workplace mediation alone will not resolve the issue of bullying in the workplace. There will always be a place for workplace investigations, education and workplace policies dealing with bullying. However, in many circumstances mediation in the early stages offers parties an opportunity to work with the assistance of an independent third party who is a trained mediator to identify and resolve workplace conflict issues before they escalate.

About the author 

Michaela Moloney is special counsel at K&L Gates. She has practised in the area of workplace relations for over ten years and has significant experience in all aspects of employment, industrial and discrimination law. Michaela is Co-chair of the Employment and Industrial Law Committee of the workplace relations section of the Law Institute of Victoria and a member of the LEADR – Association of Dispute Resolvers Michaela can be contacted at or 03 9640 4430