Now we got…Bad Blood: When should you conduct a workplace mediation?

Do you have staff in your organisation that have Bad Blood between them?

Cause baby now we got bad blood

You know we used to be mad love

So take a look at what you’ve done

Cause baby now we got bad blood

Bad Blood, Taylor Swift (featuring Kendrick Lamar) (Taylor’s version)

Should you conduct a workplace mediation?

What do you do when you staff say:

Now we got problems

And I don’t think we can solve them

You made a really deep cut

Now we got bad blood

Firstly, what is the reason for the bad blood between staff?

Has there been an incident or incidents involving poor conduct of behaviour? If so, this may warrant an investigation rather than a mediation process: see our blog What’s Up? Do I need to conduct a workplace investigation.  Where there appears to be an issue with mainly one of the parties, then an investigation, followed by a potential disciplinary process may be more appropriate.

If it is a line manager and employee situation, is there a performance management issue? If so, is the performance management process being conducted in a reasonable manner? This may require assistance from the relevant HR team to ensure that performance is being managed appropriately: see our blog Million Reasons: Taking the Wobble out of Performance Management.

On the other hand, did people get along previously, but something has happened and they just don’t get along any longer? Or has there just been a clash from day one?

Oh it’s so sad to think about the good times you and I…..

Has the relationship simply deteriorated over time such that people are no longer talking, actively avoiding each other or only communicating if absolutely necessary? You’ve seen this before – where you can feel the icy chill between people because the blood runs cold….

Workplace conflict is usually a normal part of business.  It can cause a strain on workplace relationships, impact on productivity, take up a lot of time and effort and at times, result in sickness and time off work or legal claims.  Usually workplace conflict can be resolved between parties.  However, other times, the parties may simply be unable to work out their issues on their own and need some additional assistance.  In this case a workplace mediation may be an option.

A mediation is a voluntary process where an impartial person facilitates a discussion between the two parties, to try to resolve differences between them and get to an outcome.  This is often a better outcome than having a decision imposed on the parties as the parties have ownership and responsibility over the outcome.  The key part is that it is voluntary – it will not work unless both parties agree to the mediation process.

Who should conduct the mediation?

A mediator should be impartial, able to draw out the issues between the parties and ideally be trained in conducting mediations.

This can be someone within or external to an organisation.  An internal person, such as a manager from another team or an HR practitioner may be useful because they usually know the parties, the organisation and the business context.   On the other hand, there can be issues if one of the parties feels that that person is biased or favouring one party, or if that internal person is then required to make disciplinary or other decisions in relation to the parties at a later stage after the mediation.

An external person that is trained or has experience in conducting mediations can be useful to provide impartiality and create a ‘safe’ space for the parties to disclose all of the underlying issues between the parties, which they may not feel comfortable discussing in front of an internal person i.e. the real issue isn’t between us, it’s the CEO.  An external mediator also brings experience from outside the organisation about ways the issues between the parties could be resolved.  On the other hand, an external mediator will need further briefing to get acquainted with the parties, the business and organisation context and incurs additional cost.

What is the process of mediation?

While every mediation process can differ, the key elements involve the following.

Firstly, a pre-meeting session.  This involves, usually, a 1:1 meeting between a party and the mediator to understand what’s caused the ‘bad blood’, the difficulties between the parties and what outcomes are being sought.  At times, these issues align, but sometimes they do not.  For example, a participant may want the other party to send them a draft email first before an email is sent to other managers in the business.  The other party feels that this is micromanaging and refuses to do this.

Secondly, the joint mediation session.  This involves bringing the parties together.  The mediator’s role is to explain the process.  Then each party is invited to explain their side of the story, without interruption from the other party.  The mediator’s role is then to find ways for each party to resolve each of the issues identified, with, at times a ‘reality check’ for each of the parties.  This may involve all of the parties being in the same room with the mediator and talking about each issue or for each party to move into separate rooms and the mediator going back and forth between the parties to try to resolve the issues.

Mediation outcomes

It is important to understand that a mediation does not impose an outcome or make a decision about who is right and who is wrong.  Their role is to facilitate an agreed outcome between the parties.

If the mediation is successful, ideally the parties sign a document outlining the outcomes that have been agreed.  This may involve an agreed ways of working e.g. the participants agree that emails will be copied to the line manager but do not need to be reviewed, and they will have 1:1 meetings every week to talk through issues.  There may also be agreements about how those 1:1 meetings will be conducted.  The parties then agree to abide by the outcomes of the mediation.  The mediator may also assist the employer to enable both parties to comply with the agreed outcomes of the mediation.

If a mediation is unsuccessful, then employer intervention may be required.  This may involve directing staff e.g. you will send a draft email to your line manager before sending it to other managers, or if the deterioration in the relationship is too far gone, considering a managed move for one or both parties to another role.  Often, one party chooses to exit the organisation.  These are generally not ideal outcomes, so they should be explored with the parties, with the intention that a mediated outcome is the best way forward.

In either case, if there is bad blood, an employer should take steps to move back towards, well maybe not necessarily mad love, but at least a polite and respectful working relationship.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.