When to mediate and when to investigate?

When a dispute occurs in your workplace, it can be challenging to know when to undertake a mediation or if an investigation is required.

We asked iHR Australia’s workplace relations legal practitioner and nationally accredited mediator, Karen Hermann, to help us to understand when a mediation is required or when an issue needs to be investigated.

What is the difference between a mediation and an investigation?
A mediation is an informal process designed to resolve interpersonal conflict and disputes between parties.

An investigation is required if there is a serious conflict or allegation of misconduct, or an allegation of a breach of a workplace right or grievance in the workplace that could result in disciplinary action. It is a formal process designed to determine whether a complaint can be substantiated based on the available evidence.

How do I know which option to choose? 

If the conflict is interpersonal or involves low level workplace misconduct, a mediation is preferred.

If a complaint is about a workplace right or grievance, such as allegations of bullying or harassment, or involves allegations of serious misconduct, then an investigation should be considered.

What is the process of a workplace mediation?

Workplace mediation is an informal, dispute resolution process used to solve issues and achieve positive, ongoing working relationships.

The process involves obtaining a briefing from the relevant manager or HR contact with a general background regarding the dispute.

The mediator then meets separately with the parties involved in the dispute to obtain an understanding of their interests and concerns.  They explain the mediation process to them, and determine if it is appropriate to proceed to a joint mediation session.

Next is a joint mediation session between the parties. The aim is usually to reach a written workplace agreement about expected workplace behaviours between the parties.

The process aims to teach parties negotiation and conflict resolution skills, so they can self-manage any future conflicts.

Mediations can be done internally or you could bring in an independent and impartial external mediator. It is open for parties to involve support persons in the mediation process.

Mediation is a more cost effective and less time consuming process than formal proceedings.

What is involved in a workplace investigation?

A workplace investigation is a confidential enquiry into an allegation of behavioural misconduct, in the areas of discrimination, harassment or bullying.

The process involves assessing the evidence, conducting interviews with those directly involved as well as witness interviews, and making findings based on the available evidence.

Does an investigation ever lead to a mediation in the workplace?
Yes, after an investigation, a mediation may be required, to assist the parties involved to return to the workplace and resume a reasonable workplace relationship.

What is the benefit of seeking an independent investigator/mediator?
It is advised that organisations consider an independent investigator or mediator because very often staff within organisations are not sufficiently skilled to conduct procedurally sound investigations or effective mediations.

It is also far easier for an experienced, external investigator or mediator to remain fair, impartial and unbiased.

Can I learn how to do an investigation or mediation?

Yes, iHR Australia runs training courses in conducting investigations and mediations.