By: Liz Rita
Part 1: What the Investigator Can do to Minimize Mental Health Impacts
As workplace investigators, we know that every investigation we have done has likely been disruptive, in one way or another. Sometimes this disruption is slight, and causes a stir in the workplace that subsides quickly once the process concludes. Other times, this disruption is more serious, persistent, or even existential for the employees involved.
While the process of responding to misconduct in the workplace can go a long way in positively bolstering the workplace, and demonstrating to employees that the employer cares about their wellbeing – the process itself can cause real psychological harm. And this can go beyond the typical concerns we hear about preventing retaliation.
For some witnesses, meeting with us represents the worst day of their professional lives. For others, it is among the most stressful and agonizing experiences of their entire lives. That is because there is frequently a great deal at stake in these cases. People’s livelihoods are often on the line. At times we are dissecting issues that strike at the heart of a person’s self-identity, sense of accomplishment, and self-worth. For responding parties, this meeting could represent the possibility of job loss, career derailment, or financial instability. For complainants, they may feel anxious, judged or worried about further negative consequences. Retaliation is a real (and rational) concern that is almost always on the person’s mind.
The experience for a workplace investigation participant activates their brain’s evolutionary protection responses of fight/flight/freeze/fawn. A witness’s physical and psychological responses to this activation can result in confusion, fear, anxiety, mistrust and feelings of betrayal. Within the context of work, this process can represent a major threat to a person’s livelihood, friendships and future. The result of this combination of factors can mean a witness who is anxious, stressed and physically, emotionally and intellectually exhausted.
The possibility of mental health harm in this kind of context is very real. And that is where we workplace investigators can, and should, strive to be aware, deliberate and careful to try and minimize these harms wherever we can.
How do we balance these concerns with our mission, which is to conduct a fair and thorough investigation? Ultimately this is our goal, and we cannot bypass or water down proper process in order to avoid discomfort for a witness.
This is the first of a two-part article sets out some strategies to mitigate this potential mental health toll on investigation participants. My focus this month is on what we can do as investigators to minimize collateral harm, while we are still doing our job. Next month, I will be talking about what employers can do on their end to help prevent and address the mental health toll of participation in a workplace investigation.
The Investigator’s Role in Minimizing the Mental Health Toll of an Investigation
For investigators, the primary arena where we act to impact witnesses mental health is in the interview process. There are two phases where this impact can be felt by witnesses, before the actual interview and during the interview itself. Some strategies for minimizing mental health harm, and caring for investigation participants include:
Treatment of, and communication with, witnesses before the actual interview begins:
- Ask the witness directly what support or accommodation they need to comfortably participate
As a first step, ask your investigation participants what they might need in order to make their participation more comfortable. Offer accommodations, and do this before you meet with the person, and again when you are at the start of the interview. Accommodations could be a decision to meet in a different forum than you had planned – in person at your office, online from their home, on the phone from their car. Accommodations could mean giving the person breaks to get up and walk around, or using closed captions for individuals with hearing impairment. Explore these possibilities before you meet, and be sure to revisit them once the meeting begins. You want to maximize the witness’s ability to comfortably participate. Within reason, always focus on comfort over convention.
In addition, encourage the witness to speak up, and speak up early if they have any concerns about their mental wellbeing as it relates to the investigation. This may be to the client’s Human Resources department or other internal resource that is available to them thru their employment. Ensure you know, from your client, who to connect a witness to if they need mental health support.
- Communicate to the parties who they can talk to, internally, if they need help or support
In workplace investigations, we typically tell parties and witnesses that they cannot speak to anyone about the investigation while it is ongoing. We take a fundamentally stressful process, and isolate the participants – at a time they may need the support and advice from colleagues the most. This can deprive witnesses of the opportunity to try and understand what is happening, and receive help in dealing with the consequences they are experiencing.
Ask your clients who you can designate as an internal contact for witness support. This can be a critical part of the process, and a resource we can offer to witnesses in the moment. Knowing they have someone they can go to, to process their feelings or to ask questions, can help mitigate stress about their participation – or about what might happen next.
Find out if the client contact plans on reaching out to witnesses and participants to see how they are doing thru the process. This can be a good touchpoint for the employer to determine if additional resources are needed to support a person during an investigation. If this kind of support system is a possibility, put it in motion for your investigation participants.
- Be transparent about the process and our role
I can’t say enough how important it is for investigator to be appropriately transparent in the interview process. Note I said “appropriately.” An observational witness may not be entitled to as much information about the complaint, for example, as a respondent is entitled to. But all witnesses are entitled to basic and transparent information about the interview you are about to conduct, and about the investigation process, itself.
Many witnesses are extremely stressed by the context of having to talk to a stranger about problems at work. And for many people, this is the first time they have had to do so. While many of us have been doing this work for decades, and it is “obvious” what is happening, for many people we meet, this is their first time. This is the primary reason why it is so important to explain the process – and to do this as many times as are necessary – until you are sure the person understands what is happening.
Tell the witness what the process consists of, what our role is, and what their role is. This may sound basic but it is so important. If this is an internal investigation and you are a company investigator, talk about that. Talk about how you will maintain impartiality through the process, and what resources you can offer to each witness to help them through it. If you are an external investigator, tell the person what that means, and what your role is (and isn’t). If they are a respondent, say that. Let them know that you will be telling them what the complaint is, and you are focused on fully understanding their perspective on each issue. Be accurate, clear and transparent to the greatest degree you can be, while maintaining investigation objectives.
Talk to the witness about the burning questions they almost all have. Tell them about recording, if you do that; talk about confidentiality and how that is being handled, and be sure to go over anti-retaliation protections. Importantly – tell the witness in basic terms how confidentiality relates to them, and the data they provide. If they are an observational witness, whose name won’t appear in the report (or be mentioned to the respondent), tell them this. Explain what could happen if there is litigation and you receive a subpoena. A remote possibility to be sure, but transparency means sharing these contingencies with witnesses up front.
Predictability = safety. Transparency builds predictability. And feeling safe minimizes anxiety and stress about the process.
- Give witnesses appropriate agency in the process
A workplace investigation is, by definition, out of the control of the participants. An employee files a complaint, and this puts a process in motion that the employee may not have any say about. A respondent is asked for their perspective on what happened, and they have no ability to control what the investigator thinks about their explanation. Witnesses may be obligated to meet with us, whether they would like to, or not. No participant has control over the outcome.
Every witness experiences this absence of control when they are asked to meet with a stranger to discuss problems at work. While there are areas we must maintain control over, like the data we are seeking and the topics of discussion, there are some things we can let go of. We can offer the witnesses the opportunity to do the meeting in two sessions, rather than one. This can help for particularly serious kinds of allegations. We can (and should) tell witnesses that they can take breaks at any time. If we are meeting in person we can offer them their choice of where they’d like to sit. As noted above, we can work with the witness as to location, time of day and logistics of the investigation.
Bottom line, if any point you can cede some control over the process while maintaining true to your mission, do it. Regaining a semblance of control helps a witness to feel seen, and included as a participant with agency. This can help minimize the collateral impact of participation.
- Be honest with the parties as to your best estimated timeline of the investigation
It can be very difficult to estimate how long an investigation will take, especially at the beginning. Parties, in particular, may be thinking about the investigation when they open their eyes in the morning and they may not stop thinking about it until they go to sleep at night. They are living and breathing this situation.
It is important for them to have a concrete expectation as to when this will be over. As investigators, we have to do our best to provide the parties with our best guess about when that will be. We can let them know that timelines can shift based on people’s availability. We can offer to update them as to the progress of the matter if that will help them through the process in a less stressful way.
Gathering information in the interview itself
- Offer our nonjudgmental, kind and warm demeanor to everyone, regardless of role in the investigation
Every witness in our investigations deserves to be treated as a human being in a stressful situation, with compassion and empathy for how hard these process can be. It can be really hard, and we cannot forget that. Witnesses don’t want to be there. They may be angry, scared, aggressive or withdrawn. Our job is to meet the witness where they are, and convey by our own warmth, professionalism and kindness, that this is a safe place to open up. It is our job, not theirs, to create the container that will encourage them to provide good information.
Remember, this is our obligation, and not the witness’s. Witnesses may not match our kindness, empathy or warmth. That is not important. We assume they may not be able to meet us there, but it is our job to maintain our composed tone, and to stay focused on our role.
The best investigators convey that they are curious – and not judgmental. Fundamentally, that is the most important characteristic a great investigator has: curiosity. Every witness has something important to contribute, and we have to convey that we are open to hearing it.
Investigators who can present in this way, and who are authentically curious, help a witness to be heard and really seen. This can go a long way toward making them feel safe.
- Patience – patience – patience
Patience is critical in this process. This is a skill that is probably the hardest to cultivate, for a number of reasons endemic to the work we do. Good workplace investigators are masters at multitasking in the moment. They are deeply listening to their witness. They are collating the data they are hearing with other data they have. They are thinking thru topics they need to cover in the interview, and they are hearing new data and revising their outlines and strategies on the fly. They are building rapport, and making sure to engage. They are looking for and responding to emotional cues from the witness. They are following where the witness wants to go, with an eye toward making sure that those areas will lead to the discover of relevant evidence. Frequently they are typing notes in real time, referring to witness outlines, or pulling up documents that are relevant to what the witness is saying. They are also tracking the investigation’s process, and mentally checking the boxes that are necessary to move the matter forward.
It is no wonder that investigators, even very experienced ones, can get antsy and begin to push the witness in ways both subtle, and not-so-subtle. The investigator may start finishing a witness’s sentences. They may assume where the witness is going, and ask a question to get them there more quickly. The investigator may interrupt. They may drive the conversation from their own perspective of where it should start, instead of allowing the witness to do that. The investigator may stick like glue to their outline, even though the witness is taking them in a different (and related) direction. The investigator may speed up to try and finish the interview in the allotted time. They may begin to speak more quickly, or cut off the witness before they can finish.
This is natural human behavior, and it is understandable because of the pressure the investigator is under to do this work promptly, and to get the employer the answers it needs. But impatience leaks out, and witnesses feel it. It increases stress. It makes a witness feel unheard, and unseen. It undermines the trust and invades the space we need to cultivate the incubator for gathering the best possible data. Ultimately, it can greatly harm the overall process because it will negatively impact the credibility of the data we get.
The better approach is to calm our own internal task master so that we can create a calm environment for the witness. Catch yourself if you begin to interrupt or jump ahead. Always give your witness a chance to start the narrative. Go where they are taking you (within professional reason). It is okay to let them lead, you can always follow up.
The best phrase we can tell a witness who is feeling stressed and anxious is, “Take your time.”
- Ask the hard questions in a nonthreatening way
It is essential to ask the “hard questions.” These are the questions at the heart of the matter. Was this remark made, did this person physically touch the complainant, was a person punished for speaking up? We have to ask the hard questions, even when there are situations of emotional upset, or even trauma. If we don’t ask the hard questions, we have not done our job as the investigator.
That said, there are ways to ask hard questions that are not confrontational, threatening or accusatory. Remember, that it is never our job to judge the information or the people we are presented with in investigations. It is our job to get all of the data, from all sides, so we can build a holistic picture of what likely took place. We don’t get there with aggressive questioning. We don’t get there with “why did you do that?” lines of inquiry. “Why” questions, in fact, can be of limited utility in many instances.
Instead, we get better data when we ask witnesses about hard things in a nonthreatening way. “Help me understand,” is a great opener for asking a witness about a tough topic. It is much more effective than a “why?” question. “What are you able to tell me about ….” is less confrontational than “What happened?” “What were some of your thoughts when ….” provides an opening for a witness to talk about something hard, even something hard about their own behavior.
Think consciously through your hard questions ahead of time, and write out ideas for asking for the data without any hint of accusation or judgment. This isn’t always an easy thing to do, but is a skill that can you can hone with lots of practice.
Investigators who are mindful of the potential impacts of their work can create processes that allow for the best information gathering, with the least amount of attendant mental health harm. The trick is to be deliberate, and empathetic, in this work. We touch on potential mental health consequences from the moment we first interact with a witness, through the interview process. We are coming in when there is already a problem, if not a crisis, in the workplace. As first responders to those situations, we have the dueling obligations to do what we can to minimize harm, and seek the information we need.
Employers play a critical role in this effort as well. We will be talking about that next month!