Mediation as a Business Strategy, Not a Defeat
The Power of Early Resolution: Navigating BCHRT Settlement Meetings Many employers view mediation as a sign of weakness, but in the BC system, it is a highly effective tool.
In the BC human rights system, a public hearing is the last resort. Most cases are resolved through Settlement Meetings, a form of mediation facilitated by a Tribunal member or a trained mediator. For BC employers, viewing these meetings as a "defeat" is a strategic error. In reality, mediation is one of the most powerful tools available to protect a company’s reputation, budget, and internal morale.
The primary advantage of a settlement meeting is confidentiality. Unlike a Tribunal hearing, which results in a public decision searchable by anyone on the internet, settlement discussions are "off-the-record." This allows employers to discuss sensitive business practices or acknowledge lapses in policy without fear of setting a legal precedent or facing a public relations crisis. Furthermore, the remedies available in mediation are far more flexible than those a Tribunal member can order.
While a Tribunal might order financial compensation or "damages for injury to dignity," a settlement can include non-monetary terms that provide genuine closure. This might include a neutral letter of reference, an agreement to undergo specialized DEI training, or the implementation of new internal grievance procedures. These "creative remedies" often satisfy the complainant’s need for validation while allowing the employer to move forward without the crushing costs of a multi-day hearing.
Employers should enter these meetings prepared to listen. Often, a complainant’s primary motivation is a feeling of being unheard. Acknowledging that the situation was difficult, without necessarily admitting legal liability, can bridge the gap between a high-stakes lawsuit and a quiet resolution. In the BC context, where the Tribunal backlog can lead to years of waiting, an early settlement is often the most fiscally responsible and culturally sound decision an employer can make.
Manager’s Checklist: Executing the Duty to Inquire
Phase 1: Recognition & Observation
[ ] Identify the "Red Flags": Have you observed sudden, dramatic changes in performance, attendance, or behavior (e.g., a high performer becoming erratic, emotional outbursts, or chronic lateness)?
[ ] Rule out the "Normal": Is this behavior a significant departure from the employee’s established baseline or societal workplace norms?
[ ] Check for Ground Connection: Is there a reasonable basis to suspect the change might be related to a protected ground under the BC Human Rights Code (e.g., physical/mental disability, family status, or substance use)?
Phase 2: The Compassionate Inquiry
[ ] Select a Private Setting: Ensure the conversation happens in a confidential, non-threatening environment.
[ ] State the Facts, Not the Diagnosis: * Avoid: "I think you’re depressed."
Use: "I’ve noticed you’ve missed four deadlines this month, which is unlike you. I’m concerned—is there anything going on that we can support you with?"
[ ] Ask the "Magic Question": "Are there any barriers in the workplace—or factors we should be aware of—that are impacting your ability to perform your duties?"
[ ] Reiterate Support: Remind the employee of available resources, such as an Employee Assistance Program (EAP) or your internal accommodation policy.
Phase 3: Information Gathering (The "Need to Know" Rule)
[ ] Focus on Limitations, Not Diagnosis: Remember that in BC, you are generally entitled to know the restrictions (e.g., "cannot lift over 10lbs" or "needs a quiet space"), not the specific medical diagnosis.
[ ] Request Functional Information: If the employee confirms a need, ask for a functional assessment from their healthcare provider that outlines what they can and cannot do.
[ ] Maintain Confidentiality: Ensure all medical notes are stored in a separate, secure file—not the general personnel file.
Phase 4: Assessment & Implementation
[ ] Review Against Undue Hardship: Can the requested changes be made without creating significant safety risks or unaffordable costs?
[ ] Document the Search for Options: Even if the employee’s "preferred" accommodation isn't possible, have you documented the alternative "reasonable" options you explored?
[ ] Establish a Review Date: Accommodation is a process, not a one-time event. Schedule a follow-up to see if the changes are working.