Navigating the Complexities of Workplace Sexual Harassment Mediation
From the New York Law Journal Dec. 12, 2017
Ortal Mendelawe, an Israeli attorney specializing in sexual harassment cases and an LL.M. candidate at the University of Pennsylvania Law School, assisted in the preparation of this article.
Workplace sexual harassment, from hostile work environment to unwelcome sexual advances or requests, is in the news on a daily basis. While the Harvey Weinstein case broke open the floodgates, and #MeToo is Time’s “Person of the Year,” nearly every facet of society seems to be grappling with sexual harassment in the workplace. It has come to light that many of the accused perpetrators in the news have had multiple accusers. And we have learned that many have settled their harassment claims with a sum of money and a non-disclosure agreement. While such resolutions provide some recourse, several questions are left open. Namely: How can a victim’s voice and story be heard? How should a perpetrator be held accountable? What is the effect of non-disclosure agreements on the deterrence of future (mis)conduct by the perpetrator?
As mediators, these ongoing conflicts and their monetary payouts and non-disclosure agreement resolutions leave us grappling with the potential benefits for the parties of an alternative forum for the hostile work environment claims. In this article, we consider the appropriateness of a forum that provides an opportunity to be heard and to work autonomously to craft solutions beyond the scope of financial settlements. Of course, the choice whether to mediate (or continue to mediate) is fully voluntary. The notion of engaging in direct discussions with one’s abuser may be an unappealing or even frightening alternative for some sexual harassment victims—and they may pursue a court or EEOC procedure. For those who choose to mediate, the mediations may be multi-party, as participants in these cases are not only the victim and the accused perpetrator, but also often the employer, who may be held accountable pursuant to Title VII of the Civil Rights Act of 1964. Consider, for example, what NBC’s liability might be for Matt Lauer’s alleged repeated sexual harassment of co-workers.
As regular columnists for this publication for a decade, we have made clear our preferential process: an understanding-based model that facilitates direct, face-to-face, transparent negotiations among parties. This necessarily means no caucusing, so the mediator does not retain power and information, nor does she risk a sense that her neutrality is compromised. All that said, we recognize that mediation is an elastic process and complex dynamics and emotions may necessitate a modification in the process we practice, teach and promote. Sexual harassment mediations are such an instance.
An essential consideration at the outset: If a hostile work environment claim were to be mediated, how might a mediator address the various inherent power imbalances? Sexual harassment in the workplace, in which the perpetrator is typically the victim’s superior is, at its essence, an abuse of authority. Indeed, by providing the parties autonomy over the outcome, the mediation process itself is a step toward rebalancing. In other words, parties may come to no more creative solution than financial compensation and a non-disclosure clause; however, that will be a decision they mutually arrive at after a balanced, direct process of voluntary negotiations.
Indeed, for any potential reconciliation to occur, the parties must be present in the mediation room together. That said, because of both the intimate nature of the incidents and the power imbalance between the parties, some degree of caucus and pre-mediation is likely warranted. To do so, a skilled mediator should prioritize building a trusting relationship with each party. Given the vulnerabilities of each, this may take several separate meetings, not only to learn each party’s experience and establish a rapport, but also, to prepare them for the joint mediation session. Each would be primed to tell his and her story—the facts and the emotional impact—and ultimately to listen to the other, even when it is very challenging, and even if he or she strongly disagrees with the other’s experience of what transpired. Along the same lines, an essential component of the pre-mediation sessions should entail establishing ground rules for the mediation such as: maintaining a respectful and nonjudgmental discourse thereby ensuring emotional and physical safety; confidentiality of the process as well as determining the full scope of the conflict to be addressed; given the sensitive nature of the conflict, perhaps agreeing to refrain from raising either one’s past sexual conduct with third parties.
Both parties would likely wish to have their attorneys present for the pre-mediation as well as the direct negotiation sessions. Establishing the role of attorneys during the joint session is an important component of setting up the process—attorneys are meant to be supportive of the parties’ direct negotiation. They are not actively advocating in the room, rather they seek to help their clients but generally do not speak on their behalf. Therefore, in the pre-mediation sessions the attorneys will inform the clients of their BATNA and the likelihood of prevailing at trial (or EEOC hearing), what remedies might be awarded and what an appeals process might entail—in terms of cost, emotion and time. The mediator should be prepared then to have a conversation about the legal process in the joint mediation session.
In mediation, we explore the interests of the parties to the conflict. Here, all parties (victim, perpetrator and, possibly, the employer) likely have an interest in maintaining the confidentiality of the process. For the victim, additional interests may include: avoiding retaliation; receiving an acknowledgement of harm caused, or, aspirationally, even an apology; protecting a reputation so that her career is not derailed as a result of coming forward after the harassment; and finally, perhaps, a wish to prevent further harm to herself and to co-workers. Additional interests for the perpetrator might include: preserving reputation in the workplace and in the public sphere; shielding both a career and one’s personal life from a devastating accusation; and maintaining employment. For the employer: protecting the company’s name, its mission and productivity; retaining valuable employees; evolving the culture and creating a productive, safe and desirable workplace; attracting and retaining qualified professionals—all of this, and, plainly, compliance with the law.
One approach for the mediators, after all the parties’ interests have been elicited, is to point out to them what may be surprising: a substantial overlap of their interests. Without asking each to step into the other’s shoes, the mediator is simply holding out for them the common goals and interests, such as: stability in the workplace, reputation, professionalism, financial security and future success. And when a victim is seeking employment elsewhere, there may still exist a strong overlap of interest in improving the working conditions for others.
Solutions may be varied in nature as is typical of mediated agreements. While remunerative compensation is the most common solution in sexual harassment cases, the victim may request an apology from the perpetrator and from the employer. To discuss is whether this is a private apology in mediation or a public apology. In seeking to prevent further harm, the victim may assist with the employer’s development of new workplace guidelines and procedures to better prevent and address future harms. These may include public work spaces, thereby minimizing the likelihood that the perpetrator is alone with potential victims. The victim and employer may seek to have the perpetrator suspended, demoted, relocated, or discharged from the workplace. A complementary solution may be successfully completing a sexual harassment training should the perpetrator remain employed. In case the employee victim is no longer working at the workplace (as is often the case), or is determined not to stay in her position, she may wish to receive employer recommendations, compensation and professional assistance in seeking employment elsewhere, or alternatively, relocating to another area/branch of the company. While our practice is routinely to facilitate the parties’ brainstorming ideas for solutions that may work for them, in the case of workplace harassment it may be helpful for a mediator to have a list of possible creative options to add to the mix, facilitating collaboration and further options for settlement.
Finally, a potential drawback to mediating sexual harassment cases is the same concern that is raised with non-disclosure agreements as a matter of public policy. In other words, while victim, perpetrator and employer may wish to maintain privacy, does payment for the harm or other private settlement effectively serve as hush money and forestall deterrence or other victims coming forward? And given the public interest in airing these accusations, we do acknowledge that a confidential mediation may best serve the parties personally involved while foregoing the societal benefit of transparency. However, as most sexual harassment incidents go unreported, a mediation process may contribute to a shift in the workplace toward better employee training and better employer enforcement. And, mediation is a voluntary process so addressing the conflict directly may potentially shift workplace relationships.
Indeed, in the current climate, with nearly daily headlines reporting complaints of sexual harassment and assault, there is more public support for victims to come forth. With the barrage of news and emotion surrounding sexual harassment, a question to consider is whether a mediator can in fact be neutral and connect with all parties. Though this emerging phenomenon likely deters perpetrators, how the complaints are handled provides an opportunity for all parties to these disturbing revelations.