Law Times

Law Times • apriL 9, 2018 Page 11 www.lawtimesnews.com Useful applications in employment law Mediation in workplaces a growing trend DALE SMITH For Law Times M any workplaces have been seeking medi- ators to deal with allegations of sexual harassment and sexual miscon- duct in the workplace, seeking to balance the rights of complain- ants and ensuring that there is some kind of due process for the accused. Lawyers and alternative dis- pute resolution professionals say that mediation can be the best way to resolve most workplace situations if it happens early in the process. "Employment law has always been something that lends itself well to mediation and ADR, and that's particularly true when you're talking about harassment and sexual harassment issues," says Dan Palayew, partner in the labour and employment group with Borden Ladner Gervais LLP in Ottawa. Palayew says that what gets tricky with harassment com- plaints from current employees is that the focus tends to be on investigations. While companies have poli- cies and training, there also needs to be a system in place for situations where there is no for- mal complaint. "What ADR can bring to that is a potential way to resolve a dispute without having to go through all of that," says Pa- layew. Steven Gaon, principal of ADR Ottawa Inc., who is a trained and certified lawyer, mediator and arbitrator, says the worst thing an employer can do is ignore a harassment com- plaint. "They expose themselves to liability by the aggrieved party. They may be subject to a lawsuit, the employee may quit and then allege constructive dismissal," he says. To that end, Gaon says, it's critical for lawyers to hire com- petent mediators. The process will allow em- ployees to work together bet- ter and avoid potential liability down the road if they are able to get conf licts resolved early and efficiently, he says. Anne Grant, director of Mediated Solutions in Toronto, says that, 20 years ago, nobody would think to use a with- out-prejudice process to deal with allegations of harassment in the workplace but would im- mediately jump to an investiga- tion. "Since that time, the evolu- tion of the field has been that most organizational policies around sexual harassment and other kinds of harassment and discrimination in the workplace have a provision for informal resolution as well as formal reso- lution," says Grant, a lawyer who has been a full-time mediator since 1994. "That's where mediation comes into play." Grant says, "The workplace is somewhere where relationships are of paramount importance to both complainants and re- spondents." Therefore, in the right cases, she says, trying to do a media- tion or a facilitated resolution of a situation in-house can pre- serve the relationships and help the parties move forward. Grant says one of the bene- fits of mediation is that it gives a chance for the parties to sort out their differences privately, respectfully and professionally with the assistance of someone who is not involved in the situ- ation. "There's a lot of grey area in these harassment cases, and one thing that mediation can do is give the parties a chance to dis- cuss and understand where the other one is coming from, not just in a safe place but a private place," says Grant. She says that, typically, a mediator will meet with each of the parties in the harassment allegation first to get them com- fortable with the process. While the process has to be confidential, the outcome should be shared with the em- ployer in order to fulfil the obli- gations under the Occupational Health and Safety Act, but she says that can be a report that does not require details. "Harassment investigations are a zero-sum game — some- body wins and somebody loses," says Gaon. "Even at the end of the day, even the 'winner' is not a win- ner, and while a complainant may feel vindicated, there's no award of money like [in] a civil case. You simply get this moral vindication." Palayew says that in order for an ADR process to succeed, one needs parties that are willing to engage in the process, along with the right mediator and counsel FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. Unparalleled expertise from our award-winning national team of experts CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 ✔ More than 2,000 medical malpractice, personal injury and class action cases. ✔ More than 300 lawyer clients assisted. ✔ Direct access to hundreds of specialists from all areas of healthcare expertise. ✔ A top provider of cost of care reports for your most catastrophically injured clients. Since 2001, we've become a leader in Expert Witness Services in Canada. ntitled-4 1 2017-10-24 2:41 PM Steven Gaon says the 'worst thing an employer can do is ignore a harassment complaint.' See It's, page 12 There's a lot of grey area in these harassment cases, and one thing that mediation can do is give the parties a chance to discuss and understand where the other one is coming from, not just in a safe place but a private place. Anne Grant The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. To book your seats or to inquire about sponsorship, contact us at 416-649-8841 or MediaSolutions.Sales@thomsonreuters.com Date: Sept. 20, 2018 Location: Arcadian Court, Toronto 5:30 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Jennifer Brown, Managing Editor, Canadian Lawyer InHouse/Law Times Dress: Business Attire FORGING A STRONGER FUTURE www.innovatio-awards.com Signature Sponsor Untitled-4 1 2018-03-15 3:20 PM

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