Mediation and arbitration are just more tactics employers use to protect bullies

Tired woman in the office

Don’t use mediation or other alternative dispute resolution practices for bullying resolution, says the Workplace Bullying Institute (WBI). Here’s why:

“Workplace bullying is a form of violence, non-physical and sub-lethal, but interpersonal violence nevertheless. Violent relationships cannot be mediated. Mediation requires that both parties are rational and capable of gaining an empathic understanding of the needs and intellectual interests of the other party. In bullying, only one party is rational. The other’s interest is tainted by her or his need to dominate the other party. There is no equal footing at the start. One does not mediate domestic violence. There is no halfway in the gulf between parties when one is under assault by the other.”

Workplace bullying targets shared the outcomes of employer-required mediation and/or arbitration to address their workplace bullying situations back in 2011:

  • In 52 percent of the cases, the bullies had no consequences.
  • In 33 percent of the cases, the targets were either fired or quit.
  • In only 7 percent of cases were the bullies punished or terminated.
  • The remaining cases involved transfer of either the target or bully.

That’s right: bullies were able to act with no consequences 52 percent of the time, but targets had to suffer with job loss 33 percent of the time. In other words, employers most often protected the bullies even under the guises of mediation and arbitration.

“If chance alone were to predict an outcome between two parties, one could expect that each person would win 50 percent of the time,” explains WBI. “The actual outcome is far from chance. The aggressor (harasser, bully) won in mediation by any measure you choose. Bullies walk away without having to give up anything in compromise (52 percent). Negatives were not equivalent for targets (33 percent if one counts a transfer to safety as a positive, or 50 percent if transfers also mean loss of a coveted job that had to be abandoned to get to safety) versus for bullies (7 percent).”

“When targets are mandated to mediate, the targets’ loss of control over their work lives is reinforced by the employer. After the process, the outcomes strongly favor the bullies. Employers should not mandate mediation or arbitration. (Arbitration is often a clause in modern employment contracts. It is the employer saying to employees that you may not sue them in civil court no matter how they mistreat you.),” adds WBI.

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3 comments

  1. Steven

    Workplace bullying is a form of corruption whereby dysfunctional and borderline illegal practices are allowed. Boards should be accountable for such practices that impact the productivity and reputation of the enterprise. There needs to be third-party involvement that can review and impose fines. Internal governance mechanisms do not work for the simple reason that executive management and boards are liable for many of the behaviors and so work very cleverly to avoid accountability. The nefarious actions of bullies pivots around dysfunctional / cooperative HR and upper management who abuse their authority to deprive targets of resources – financial and professional – to affect a reasonable outcome from unreasonable behavior. Too often “performance” is the reason given to finally terminating targets. This is a ruse. 85-99% of performance is dictated by management. Legal professionals and regulation must require better quantification and qualification of how employees are rated. Often it is fraudulently and defamatory – unprofessional.

    • jnash56

      This is absolutely true in my experience and I couldn’t agree more with Steven’s comments. I even reported alcohol (wine) consumption on the job which went on for years, allowed by management, to an oversight board and their attorneys. No action was taken to hold any employees or the management accountable for violating established personnel policies, which called for termination upon 1st offense of alcohol or drug use in the office. The manager also represented himself as the human resources person. The meeting for mediation was an absolute joke, with the coworker slinging insults, demeaning comments and cruel hurtful words. She even fabricated additional lies about my work performance. When I asked the manager of what he thought of her comments, he said, “She’s entitled to her opinion”, although it violated policies that addressed discourtesy in the workplace. I abruptly walked out of this abusive and hostile meeting; clearly designed and collaborated to not align with professional, ethical and civil conduct and standards of a normal office environment.

  2. toriiannbottomley

    “One does not mediate domestic violence.” If we begin to refer to bullying as psychological violence then this notion becomes more clear that the behavior is premeditated and criminal. In my bullying experience, both mediation and arbitration were “ambush” situations. The union and lawyer for the school district had me “prepare for an arbitration”, call witnesses to come etc. The arbitrator was a “friend” (not objective) who clearly knew he was going to get paid 1K for the day, just sitting there. A perfect kickback situation. When the school legal team arrived they looked me up and down and left the conference room. Minutes later, the union took me to a smaller room and in stereo the union rep and the union lawyer told me I should take any job and be glad I was offered one, and reminded me several times that my sick leave had run out. Clearly they calculated that I had 7 months of sick leave and by setting the arbitration date 7 months out, I should be in the extreme fearful economic mode and would agree to anything just glad to be receiving a check again. There was a knock on the door saying one of the witnesses had arrived and the union lawyer said for me to go and tell her to go home, we were not having an arbitration. More head spinning and psychological abuse. When was this decided? Clearly it was from their playbook. I held my ground to my right for an arbitration (I had waited 7 months for this date) and a date was agreed to 3 months later. Just before that date the union said they settled for me?! I was to take any job and join the pool. Arbitration and mediation are psychological land mines for a target and a gleeful “soft industry” for both legal sides and the mediator/arbitrator. Another level of the death of innocence for the ethical professional.

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