Authors: Kenda L. Murphy

The parties and witnesses have been interviewed. The evidence has been reviewed and assessed. The investigation is complete. The report has been rendered. Findings have been made. The organization is ready to act. Now it is time for a restorative process such as mediation

In preparation for a post-investigation mediation, a question that often arises is whether it is necessary for the mediator to read the investigation report? The answer is -it depends.

As a neutral who conducts post-investigation mediation processes I am often asked whether I would like to read the Investigation Report. My response depends largely on the nature of the investigation and the purpose of the mediation.

If the investigation concluded with positive findings arising largely from admissions of the Respondent(s) generally it is not necessary to read the report because I am working with the parties primarily to determine how they want to craft the way forward in their working relationship. I find that nothing turns on the minutiae of the event(s) giving rise to the investigation because there is no Respondent resistance that must be overcome. My purpose is to work with the parties to address the future orientation of how they will work together.

By way of contrast, if I am asked to assist an organization in identifying gaps in internal processes or redesigning or refining policies and procedures, I often find it helpful to read the report. It will help me to understand the background to the issues, the people involved in the investigation and the structure of their team, group or reporting dynamic and determine all of the relevant pieces that will inform their work.  The report will likely provide the kind of context needed to canvass what transpired with the view to detailing recommendations to assist the organization.

In the event that there are findings that have not been accepted by one or both parties I may ask to read the report because the disagreement with the findings may well interfere with gauging what the parties want and expect going forward in the work relationship. The mediation is not another opportunity to rehash the events giving rise to the investigation so reading the report can assist with knowing when or if to redirect or refocus the parties’ discussion during the mediation.

It is important to keep in mind that there are no hard and fast rules in relation to whether a mediator will want or need to read an investigation report in advance of a mediation. The key consideration should be what, if anything, will reading the report contribute to the outcome of the mediation process. Will it allow the mediator to more effectively assist the parties?  Can the report help the mediator to obtain meaningful background information that may inform the mediation process and advance the objective of the mediation participants to self-determine their working future together?

When engaged as a mediator, my responsibility rests with the parties involved in the mediation keeping in mind that the mediation process is informed by my experience as a lawyer and investigator. Clients requesting my services often ask if mediation will assist in reaching the desired organizational objectives coming out of the investigation and what my process looks like to advance that end. I am mindful to have that discussion while keeping the parties involved in the mediation at the centre of that determination.  This helps me to determine the need or interest in whether to read the report or not to read the report submitted by the investigator.

About the Author Toronto based lawyer Kenda L. Murphy conducts workplace investigations into allegations of sexual violence, harassment, bullying and poisoned work environments. Kenda creates and delivers sexual violence and human rights training to all staff levels within organizations. Kenda also is a trained mediator who conducts workplace restorative processes.