Many workplaces have been seeking mediators to deal with allegations of sexual harassment and sexual misconduct in the workplace, seeking to balance the rights of complainants and ensuring that there is some kind of due process for the accused.
Many workplaces have been seeking mediators to deal with allegations of sexual harassment and sexual misconduct in the workplace, seeking to balance the rights of complainants and ensuring that there is some kind of due process for the accused.
Lawyers and alternative dispute resolution professionals say that mediation can be the best way to resolve most workplace situations if it happens early in the process.
“Employment law has always been something that lends itself well to mediation and ADR, and that’s particularly true when you’re talking about harassment and sexual harassment issues,” says Dan Palayew, partner in the labour and employment group with Borden Ladner Gervais LLP in Ottawa.
Palayew says that what gets tricky with harassment complaints from current employees is that the focus tends to be on investigations.
While companies have policies and training, there also needs to be a system in place for situations where there is no formal complaint.
“What ADR can bring to that is a potential way to resolve a dispute without having to go through all of that,” says Palayew.
Steven Gaon, principal of ADR Ottawa Inc., who is a trained and certified lawyer, mediator and arbitrator, says the worst thing an employer can do is ignore a harassment complaint.
“They expose themselves to liability by the aggrieved party. They may be subject to a lawsuit, the employee may quit and then allege constructive dismissal,” he says.
To that end, Gaon says, it’s critical for lawyers to hire competent mediators.
The process will allow employees to work together better and avoid potential liability down the road if they are able to get conflicts resolved early and efficiently, he says.
Anne Grant, director of Mediated Solutions in Toronto, says that, 20 years ago, nobody would think to use a without-prejudice process to deal with allegations of harassment in the workplace but would immediately jump to an investigation.
“Since that time, the evolution of the field has been that most organizational policies around sexual harassment and other kinds of harassment and discrimination in the workplace have a provision for informal resolution as well as formal resolution,” says Grant, a lawyer who has been a full-time mediator since 1994.
“That’s where mediation comes into play.”
Grant says, “The workplace is somewhere where relationships are of paramount importance to both complainants and respondents.”
Therefore, in the right cases, she says, trying to do a mediation or a facilitated resolution of a situation in-house can preserve the relationships and help the parties move forward.
Grant says one of the benefits of mediation is that it gives a chance for the parties to sort out their differences privately, respectfully and professionally with the assistance of someone who is not involved in the situation.
“There’s a lot of grey area in these harassment cases, and one thing that mediation can do is give the parties a chance to discuss and understand where the other one is coming from, not just in a safe place but a private place,” says Grant.
She says that, typically, a mediator will meet with each of the parties in the harassment allegation first to get them comfortable with the process.
While the process has to be confidential, the outcome should be shared with the employer in order to fulfil the obligations under the Occupational Health and Safety Act, but she says that can be a report that does not require details.
“Harassment investigations are a zero-sum game — somebody wins and somebody loses,” says Gaon.
“Even at the end of the day, even the ‘winner’ is not a winner, and while a complainant may feel vindicated, there’s no award of money like [in] a civil case. You simply get this moral vindication.”
Palayew says that in order for an ADR process to succeed, one needs parties that are willing to engage in the process, along with the right mediator and counsel that can understand and appreciate the unique dynamic.
Grant says that while Ontario’s recent changes to the Occupational Health and Safety Act require an investigation in a case of harassment, this has been interpreted to mean that, where a workplace has a policy that allows for informal resolution, it can try that first.
“That’s still a way of dealing with the complaint,” says Grant.
“I think the reason why the Occupational Health and Safety Act was strengthened was to ensure that these weren’t swept under the rug. By doing a mediation, you can also fulfil this obligation.”
Grant says that one of the challenges in the workplace is that, in the age of Jian Ghomeshi and Harvey Weinstein, there has been an incorrect perception planted in the minds of the public that anyone can come forward with a complaint and powerful people will lose their positions with no investigation or due process.
“In Ontario, there is a very strong requirement for due process,” says Grant. “This is one of the reasons why the Occupational Health and Safety Act was amended — to confirm that employers deal with it and need to apprise parties of the outcome of the investigation.”
Grant says the other issue with due process is the prohibition against reprisal.
She says she is amazed at the number of times in which complaints may be unsubstantiated but it’s the reprisal that brings down the respondent.
“It’s a type of due process — to show people that they’re protected,” says Grant.
Gaon says that if an investigator changes roles to a mediator partway through the process, that may work, but they should not go back to an investigator role if mediation fails, as it would impart a sense of bias through the process.
Palayew adds that the perception is that if the investigator was part of the mediation, they may have heard something that will affect the outcome of the investigation, which is why it makes sense to keep them separate.
