I am looking forward to presenting with friends and colleagues Lana Hamilton and Tristan Cutcliffe at the Resolution Institute Conference in Adelaide. In my part of the presentation, I challenge whether we are deliberate about process design as mediators, as opposed to being creatures of habit and culture?
This challenge needs to be seen in its broader context - mediation has become commonly associated with legal claims, or disputes seen through a legal lens (of which I am, admittedly, a beneficiary!). Although mediation is undoubtedly an invaluable part of contemporary legal systems (hardly 'alternative' in any real sense today), its origins and potential application is much broader.
This is all too apparent in the workplace arena. Mediation is, in my view, still underutilised by HR professionals and leaders - no doubt because it is still seen largely as a reactive measure (to address a claim), as opposed to a proactive step to better manage workplace risk.
In making this case, let's examine the broader context.
The psychological injury problem. The numbers are striking.
• Mental health conditions now account for 12% of all serious workers’ compensation claims in Australia. In 2023–24, approximately 17,600 serious claims involved a mental health condition (Safe Work Australia).
• These claims are growing faster than other major categories of workplace injury. Between 2013–14 and 2023–24, serious claims involving mental health conditions increased by 161.1% - the largest increase recorded by Safe Work Australia.
• Psychological claims are disproportionately serious and costly. Median time lost was 35.7 weeks, compared with 7.4 weeks across all serious claims. Median compensation was $67,400, compared with $16,300 across all serious claims.
But these figures tell only part of the story.
The Safe Work Australia data comes from the National Dataset for Compensation-based Statistics. They capture serious workers’ compensation claims, not the broader range of workplace distress, conflict or psychological harm that never enters the compensation system.
That distinction matters.
Psychosocial risk - what's the big deal?
My attention was recently drawn to comments from Don Ferguson, CEO of EML Management, in an interview published on 31 August 2026.
Mr Ferguson described three forces converging in the workers’ compensation environment: psychosocial hazards, increasing mental-health conditions and rising workplace conflict.
The third factor, workplace conflict, is much broader than its application to workers compensation schemes and is of course endemic (and even valuable) in all workplaces. Noting this reality, mediation presents particular value if it is moved upstream.
Mediation as proactive workplace management.
In my view, mediation should be a much more accepted part of the HR and leadership toolkit, that is, a proactive workplace intervention to address conflict before it escalates.
The challenge here can be one of nomenclature, namely that mediation is often considered to be an inherently legal process. That's why in conversations with employers and HR professionals, I may use terms such as facilitated conversation or facilitated workshop. Worth acknowledging that this language can feel less threatening to leaders and employees, particularly when a person such as me (a career lawyer) walks into room!
The power of workplace mediation is that it can (and should) be particularly bespoke to the people, organisational context and issues. For example, I have designed facilitated workshop processes that may involve some level of agreed coaching or other ongoing accountability measures (before or after the facilitated workshop).
The other power is that it promises very practical results (both personal and systemic) if agreement can be reached. In my practise, I have assisted to facilitate agreement in the workplace around communication, expectations, escalation processes or broader team dynamics.
Sure, it is not always the answer. Some matters require investigation. Allegations of serious misconduct, sexual harassment or bullying (obvious examples) invariably require a formal process, particularly where significant disciplinary action looms large.
That said, investigation needs to be carefully considered and should not be automatic, as it can exacerbate conflict and create an unnecessary adversarial context.
Despite this more provocative title, my colleagues will be happy to hear that there will always be matters requiring lawyers - allegations requiring investigation, compensation claims requiring assessment, disciplinary and other processes requiring legal advice.
But don't forget about the early use of mediation for workplace conflict, even if you call it a facilitated workshop. Used early, it may be one of the better investments an organisation can make in managing workplace risk, relationships and performance.
I regularly share short insights on mediation, negotiation and all things leadership. From how to optimise success in negotiations, to the skillset required to sustain high team performance and promote resilience. I share these video reflections, drawing from my experience both as a former leader in professional services and now as a mediator and leadership coach.
"Damien is an incredible Mediator. He is experienced, is always across the brief and has a depth of legal knowledge that can assist the parties to navigate even the most complex issues to reach a resolution. Damien is my first choice for any Mediation, especially for vulnerable plaintiff’s feeling overwhelmed by the process as they are immediately comforted by his affable and empathetic nature.”
Damien was engaged as an Executive Coach in our business to navigate a half-decade of poor habits, realign our leadership team and position us for a strategic exit.Facilitating an executive workshop was instrumental in resolving internal conflicts and realigning us to a collective focus on future opportunities.
I have especially appreciated your logical and calm approach to problem solving, and I have valued your methodical and composed demeanour in tackling complex issues. You have not only equipped me with effective strategies but also instilled a sense of confidence and clarity in my own decision making processes.
