Hybrid investigations? Some lessons from the world of Med-Arb

Increasingly, respectful workplace and anti-harassment policies contemplate a range of processes for resolving workplace conflict.

Options available to external “neutrals” can be made to mirror those available to employers and institutions when managing a conflict “in house.” The external neutral can create a process that progresses through the various levels of conflict resolution offered under a policy, while providing the sometimes-necessary separation inherent in an external process.

In addition to investigations, facilitated discussions, training, mediation, and conflict coaching are some of the many measures that can be tailored to the circumstances and offered to parties, alone or in combination.

Sometimes it’s unclear how an interpersonal conflict—reflected in a workplace complaint—might best be tackled. We were recently asked to conduct a “med-arb type” investigation: first attempt to mediate a resolution, and only investigate if the matter remains unresolved.

Lessons learned from med-arb are helpful in framing such a “hybrid” investigation process. Carefully executed, this approach gives disputing parties the option to focus initially on a restorative solution, while protecting rights should the matter later go forward to investigation.

What is Med-Arb?

Med-arb is a hybrid process conceived as a means of incorporating the best features of mediation (flexibility, collaboration) and arbitration (finality, certainty) into one process. Most med-arb involves a single neutral overseeing both stages. At its essence (and in its most common form), med-arb involves a mediation followed by an arbitration to address unresolved issues.

Some questions commonly associated with med-arb include:

  • use of confidential information from the mediation phase;
  • concerns about neutrality;
  • potential pressure during mediation phase;
  • practitioner skill and experience to manage both phases.

Proponents of the process cite the benefits, which include:

  • efficiency, with the prospect of reduced time and cost;
  • flexibility to fashion processes that align with participant interests;
  • incentive to resolve disputes rather than risk outcomes of adjudication;
  • relationship preservation.
Hybrid Investigation processes?

Procedural fairness being the cornerstone of any investigation practice, questions arising in relation to med-arb are equally apt when considering a process involving both mediation and investigation.

Still—given the need to quickly address festering workplace matters—a hybrid mediation-investigation process has the potential to create efficiencies. The skills and methods often shared by mediators and investigators can be another advantage: active listening, trauma informed techniques, open ended questioning, and careful reframing of participant statements.  A staple of the mediator’s tool kit, rapport building is also essential to the investigator’s pursuit of good and reliable evidence.

Process design considerations from the world of med-arb can be helpful in framing an appropriate mediation-investigation process and addressing some of the potential pitfalls. But one example: to use one or two neutrals, and for which process components? With careful design, consent from the parties, and skilled practitioners, creative options are possible.

While certainly not appropriate in all circumstances, a mediation-investigation process may well be suited to some interpersonal conflicts. It can enhance relationship preservation, all the while protecting process integrity and reliability.