Mediation & Conflict Resolution

Jack-Davies Consulting partners with a lawyer to officer cross-cultural mediation and conflict resolution services. Workplaces that are waiting for a hearing with a human rights tribunal may be struggling with conflict and mistrust in the workplace that greatly impacts productivity.

Mediating Cross-Cultural Conflict in the Workplace Before a Tribunal Hearing:

What can you do in the meantime?

 

In 2011 and then again in 2015, my colleague John and I intervened as Mediators in two workplaces where a complaint based on the grounds of race was filed with the Ontario Human Rights Tribunal. Productivity at each workplace had deteriorated to a point that was unhealthy for the organization and the employees involved. In this article we discuss our observations in the hopes of shedding light on an issue that receives less attention than it rightfully deserves. While cases involving race and race-related grounds are governed and heard by the Tribunal, we hope to explore what happens in the workplace before the case is heard. We ask the question, what happens in the workplace when a Complainant launches a complaint against a Respondent or an employer where all parties remain in their original employment roles as they wait for the case to be heard, which many not happen for many months or even years?

In 2011, we assisted a client whose workplace environment had become so toxic, it became unhealthy for the Complainant, Respondent and other employees near to the case. When we arrived at the site, it was clear that the Complainant’s decision to file a complaint was met with anger, resistance, confusion and fear by her colleagues, despite the fact that she herself felt that she had no other recourse but to approach the Tribunal for a fair and impartial resolution.

The Complainant, a racialized female professor with accented speech alleged that the Respondent, a White professor, poisoned the teaching environment at the workplace. The Complainant explained that whenever she taught, her students often relayed negative comments that were allegedly made by the Respondent and that such comments cast doubt in the minds of students about her competence and ability as an effective educator.

The Complainant suggested that the entire workplace was poisoned to the point where, as one of few racialized professional staff in the building, she could no longer perform effectively as an academic given that her professionalism and expertise was in constant question. In response, the Respondent denied all the allegations, emphatically denying that she was a racist and that she made any comments about the Complainant’s teaching.

After interviewing a cross section of employees, it became clear to us that the poisoned environment that we encountered did not develop overnight. Instead, it was symptomatic of several factors operating simultaneously, including:

  1. a) a lack of attention to formal policies
  2. b) failure to make timely decisions by senior staff
  3. c) employees “taking sides” by weighing in on the feud that ensued between the academics where some staff refused to work with the Complainant out of loyalty to the Respondent.

While we cannot explore all the specifics of this case here, we use its main points to raise important questions surrounding the reality that Tribunal cases in Ontario often take months, sometimes years before they are heard. “The reality remains that given this timeframe, attention must be paid to managing the conflict in a manner that provides a safe working environment for all parties involved”, says Diane Mason, President & CEO of HR Proactive. Below are important steps that employers can take to manage conflict in the workplace that may stem from a case that has been filed with the Tribunal, without exacerbating the issue further:

  1. Face the Facts. Acknowledge that a case has been filed and that working relationships amongst staff might change in the ensuing months or years. The key here is to recognize that emotions are running high and to acknowledge what is taking place.
  2. We’re Only Human. Pay attention to the emotional side of the issue. The Complainant, Respondent and all staff affected by the case will experience a host of emotions that must be acknowledged. Making a decision about whether the complaint is legitimate or falls under a prohibited ground is probably less important than addressing the raw emotions that employees are displaying, especially in the early stages. The Tribunal will have to make the final call. In the meantime, the employer would be well advised to acknowledge that the situation has caused pain for both parties.
  3. Avoid Avoidance. Burying your head in the sand will not make the case or the fear, shame and/or embarrassment that the case may bring to the workplace go away. Review workplace policies that govern the issue that is being addressed and follow steps outlined to manage the case.
  4. Document, Document, Document. Make clear and concise notes each step of the way and store them in a safe and confidential space. The time leading up to a hearing can be tense for both management and employees. While we often believe that we will remember minute details of a case, we often don’t. Keeping a diary or a work-log with dates, times and an overview of important conversations is of the utmost importance.
  5. Ask for Help. If the workplace becomes so uncomfortable that employee and management relationships are destroyed, seek intervention from a certified Mediator who can offer support and help develop guidelines that will guide employee behaviour in the weeks and months leading up to the hearing. Often, when employees and management are deeply invested in a case, it is difficult to take a bird’s eye view of the situation and even more difficult to make fair and impartial decisions. With the help of the team, a Mediator can often develop a Memorandum of Understanding that parties can use to minimize further conflict while still attending to their day to day duties.
  6. Separate the Parties. In extreme cases where tensions are running high, assign the Complainant and the Respondent to different worksites if there is a fear that one of the parties could be injured or if the stress from the impending case is creating mental health issues that can have long term effects. We realize that it is not always possible to separate the parties. It may still be possible to create a safer environment by bringing in a Mediator to assist the parties in designing their own ground rules surrounding workplace practices such email correspondence, face to face meetings, the assignment of shifts, and so on.
  7. Review Policy. At this point, it might be useful for management to review workplace policies to determine whether any further action can be taken to avoid a repeat of the incident. Outdated policies should be updated. Policies that are buried and are unknown to staff must be brought to light and made clear. Too often the lack of clear guidance in a policy or lack of awareness of the policy is a big part of why things escalate. In some cases, training or re-training of staff might be required.
  • Anita Jack-Davies is a diversity and inclusion consultant at Jack-Davies Consulting (www.crossculturalmosaic.com).
  • John Curtis is an Ontario based lawyer and mediator who focuses on workplace conflict (www.johncurtis.ca)
  • Diane Mason is President & CEO at HR Proactive (www.hrproactive.com)