Bullying and Workplace Culture

You can find a lot of information and advice about workplace bullying on the internet. Unfortunately while most of the information and advice is good so far as it goes, I find that much of it nonetheless misconstrues the nature of the problem.

Most discussions of workplace bullying start with a definition of bullying. Basically, bullying is “persistent harassment”, and “harassment” is conduct that is unwelcome or ought to be known to be unwelcome. Harassment might include insults and demeaning remarks, comments of a sexual nature, offensive jokes, or intimidation. Most discussions of bullying then move on to advice: “What to do if you are a victim of workplace bullying.” The advice usually amounts to four basic points:

• Document what is happening – keep a record of the harassment as it occurs, with names of witnesses if applicable. 
• Stand up for yourself. 
• Reach out and let someone know what is happening. Contact a union rep, or the Human Resources Dept, or the Employee Assistance Dept. 
• If possible, try not to be alone with the bully. 

As one-size-fits-all advice, this is pretty good. The problem is that the focus is on individuals – bullies and their victims – rather than on the workplace culture that makes both kinds of roles possible. Bullying is problem of organizational structure or culture; it requires management-level intervention and solutions. Expecting the victims of bullying to solve their own problems is both unrealistic and an abdication of management’s responsibilities. How management approaches the problem can make the difference between a flourishing and respectful workplace, and a workplace with low morale, low productivity, high employee turnover and a host of other problems.

I was once called in to a workplace where Mike, a recent hire (and not his real name) was persistently harassed by his immediate supervisor. The supervisor insulted his work, made a big deal out of minor mistakes, denied him information that was necessary for completing work properly, and generally treated him horribly. Mike liked the actual work and seemed to be pretty good at it, but things got to the point where he dreaded having to show up in the morning and had to take an unpaid stress leave. Luckily for Mike, he had the support of his co-workers who could see the supervisor’s bullying behaviour for what it was.

Mike wasn’t so fortunate when he approached management about the problem. The manager and the supervisor had a history together that Mike and the manager did not. The manager assumed that the supervisor’s behaviour was justified, that Mike was a “hot head” who didn’t know the job yet and couldn’t take constructive criticism. You can imagine the messages sent by the manager’s failure to investigate properly. The bully got the message, “Your behaviour is just fine and there is no need to change.” Mike got the message that he was not valued in the organization. And his co-workers got the message that, if they were in a similar situation, management would not support them.

It is unfortunate but hardly surprising that things got worse for Mike before they got better. Eventually, it took all of Mike’s co-workers in the department together going to the manager to let him know what they’d seen. And I have to give credit where it is due: When the manager understood the reality of the situation, he made it clear to the supervisor that the bullying behaviour could not continue. When the supervisor received that message, clearly and in no uncertain terms, his behaviour changed.

The lessons for managers: Bullying is a problem of workplace culture; it is not a problem that you should expect employees to solve between themselves. Everyone, at every level of the organization, needs to know what kind of behaviour is unacceptable. And when someone crosses the line of acceptable behaviour, management needs to be willing to back up their words with action.

More on Confidentiality in Mediation

Confidentiality is a basic principle of mediation.  But it seems that it is also one that mediators have to be vigilant about protecting.

Earlier this week I was fortunate to attend a talk at the ADR Institute of Ontario by David Bristow, a very respected lawyer, mediator and arbitrator.  Mr. Bristow told us about some recent important new cases with implications for ADR practitioners, and there was a lively discussion afterwards.  One of the cases he discussed, Hand v. the Walnut Valley Sailing Club, Kansas, caught my imagination

Mr. Hand had been a member of the Sailing Club for about 20 years, when the club made some changes to a storage area where sailboats and other equipment was kept.  Mr. Hand protested against these changes, saying that they were in violation of the Americans with Disabilities Act.  When the management of the Sailing Club refused to act on his protest, Mr. Hand wrote a letter to Governor Parkinson.  Learning of this letter, the management of the Club cancelled his membership; Mr. Hand’s response was to sue under the ADA.  The lawyers for the Club filed a motion that Mr. Hand’s claim be dismissed, on the ground that 1) he is not disabled; and 2) the Kansas laws protecting whistle-blowers apply only to employees.  The presiding judge, Sam A. Crow, agreed, and the case was dismissed.

A few months later, Mr. Hand visited the club on two occasions.  (I believe that he was the guest of a member).  The Club’s lawyers wrote to Mr. Hand’s lawyers, demanding that Mr. Hand not enter club premises.  Shortly after, Mr. Hand visited the Club again and refused to leave when he was asked to.  The Club filed a request with the court for a restraining order against Mr. Hand.  The motion was denied.

At some point in the dispute, the parties were ordered to mandatory mediation.  Within hours of the mediation session, Mr. Hand had sent a blow-by-blow account to all members of the Club, plus assorted friends, via email.  He revealed the amount of money the Club’s management offered him to settle the case, his own response to the offer, the number of lawyers representing the Club, what their fees might amount to, and what the mediator said and did.  In short, he revealed basically everything that happened in the course of the mediation.

The judge (Mr. Sam A. Crow, again) was not amused, to say the least.  He dismissed Mr. Hand’s entire action as a sanction for violating the confidentiality of the mediation process.  Although the case is not binding on the courts of Canada, Judge Crow’s reasons for dismissing the case may be relevant for confidential proceedings anywhere.  (The text of the decision may be found here.)  Briefly, the judge found that Mr. Hand’s revelations were highly prejudicial, interfered greatly with the judicial process, and that the leak of confidential information was done knowingly and willingly.  All of these factors lead him to sanction Mr. Hand as seriously as he did.

The case of Hand v. the Walnut Valley Sailing Club is thought-provoking for many reasons.  On the face of it, the relative triviality of the issues makes it precisely the kind of case that should be kept out of the court system.  Yet Mr. Hand clearly wanted a public vindication for himself and a public reckoning for the Club’s management.  In that respect, he was not a good candidate for mediation.  Could the mediator have done more to impress upon him that effective mediation requires confidentiality, and that keeping mum would be in his interest?  Did Mr. Hand’s lawyers warn him about the possible consequences of breaching confidentiality?  We have no way of knowing.

The Kansas case, despite its relatively low stakes and lack of global significance, provides a vivid illustration of how mediation can go wrong if the parties aren’t fully committed to the process and to respecting confidentiality.