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"Originally published in Vol. 43, Number 4, July-Aug.-Sept. 1997 issue of Business & Economic Review, Moore School of Business, University of South Carolina."
Often, allegations of sexual harassment leave employers trying to determine the credibility of two equally valuable employees. Such tenuous judgment calls make employers uncomfortable. Court battles absorb valuable employee time and incur large legal fees. Most importantly, litigation produces a winner and a loser, thus permanently damaging the employment relationship of all parties.
The problems engendered through litigation of sexual harassment cases cause proactive business people to seek alternative means for redress. Recently, some employers have begun using mediation to resolve sexual harassment claims. A review of the literature reveals that many different types of mediation exist. This article discusses two mediation models and shows the benefits and detriments of each for resolving sexual harassment claims.
The Four-Phase Process Model
Community Boards that train volunteer mediators to resolve community disputes offer a four-phase process model of mediation. The purpose of this approach is to allow the disputants to understand each other's point of view, air frustrations in a positive manner, get their views validated, and arrive at their own resolution. This model focuses on the relationship between the parties and attempts to maintain that relationship. The resolution may or may not involve money, and there are no winners or losers. Ideally, all parties should win through the four- phase process model.
During the first phase of the process, the mediator or panel of mediators asks the parties to tell their story directly to the mediator/(s). The disputants don't talk directly to each other during this phase. Rather, the mediators perform active listening and positive feedback in an attempt to validate the parties' feelings and help them feel heard. The mediators also attempt to elicit the issues each party needs addressed through the mediation process. When these issues have been clearly identified, and the parties have explained their positions to the point where they can participate in a rational and meaningful discussion, everyone is ready for phase two.
The goal of this phase is to help the disputants understand each other. They turn to face each other, and the mediators ask them to listen to one another and respond in a manner that shows an understanding of the other party's perspective. The mediators support phase two by (1) asking one party to tell their perspective and (2)prompting the appropriate response from the other.
During phase one or two, the mediators may decide to caucus separately with the respective parties. A caucus consists of an individual interview with each disputant. Caucuses may be appropriate to move the parties beyond an impasse or to enable the mediators to obtain hidden information from a party or parties reluctant to speak in front of each other.
Once the mediators see an understanding has developed, they help the parties acknowledge their new understanding during phase three of the process. During this phase the parties realize they have gained an understanding of each other's perspective, even though they still may not agree with each other. This phase acts as a transition to phase four where the parties will actually work out the solutions to their issues.
This final phase consists of the parties' coming to resolution. Each issue identified during phase one should be resolved during phase four. The mediator does not suggest solutions. Instead, the mediator's role should remain limited to helping the parties stay focused on the issues and eliminating power plays where possible. The mediator can facilitate brainstorming and ensure that each party accepts the final solution. The mediator can also provide a reality check for the solutions offered by the parties.
The Settlement Conference Model
The goals of the settlement conference model differ greatly from those of the four-phase process model. Whereas the former strives to maintain the relationship between the parties and allow them to work out their own solution, the latter is primarily concerned with reaching an agreement that will keep the parties out of court. In the four-phase model, the mediator is a facilitator. But in the settlement conference model, he or she is the negotiator for the parties.
Under the settlement conference model, the mediator holds a premediation meeting with all parties.1 He or she describes the mediation process and introduces himself or herself to the disputants. Each party provides the mediator with a written summary of the dispute, as well as court and other relevant documents.
Then the mediator holds an initial mediation session where the parties give oral statements of their views of the dispute and present their cases. After the initial joint meeting, the mediator meets separately with each party to gather confidential evidence and present arguments of law.
Once the mediator has heard the case presented by all the parties, he or she develops and presents settlement proposals to the disputants. After the mediator perceives the parties' reactions to the proposed settlement, he or she shuttles back and forth between the parties in an attempt to work out a mutually agreeable solution. This process is known as shuttle diplomacy.
The Sexual Harassment Arena
Each party to a sexual harassment claim brings different issues to the table.2 Typically, sexual harassment claims involve three parties: the complainant (an employee), the accused (usually an employee), and the employer. The complainant normally wishes to address several issues. First, this party has felt violated or abused in some way and needs to feel whole again. The complainant wants the unwelcome behavior to stop, but does not want to put his or her career in jeopardy by filing the complaint. In short, this disputant wants to continue doing his or her job as though nothing has happened.
Depending on the circumstances, the complainant may want the employer to make up for past unfairness such as the loss of a promotion due to the alleged harassment or back pay. They may also want to punish the accused. Finally, the complainant usually wants to avoid any further emotional trauma, including the possible drain of a trial.
The accused wants to protect the confidentiality of the charges to the greatest extent possible, and to keep his or her job. The accused also wants exoneration if possible. Since sexual harassment does not require intent, often the accused wants to know what he or she did wrong and would like the opportunity to make amends for unintended harm.
The employer wants to avoid liability. If sexual harassment has occurred, the employer wants to pay as little as possible to rectify the situation. The employer wants to maintain the productivity and commitment of the work force and to uphold company policies. Ideally, the employer would like to maintain good, productive employees and a harmonious working relationship.
Litigation vs. Mediation
Litigation does not fulfill the complainant's desire to avoid further trauma. It also does not allow him or her to continue their job as though nothing happened. Indeed, the whole situation will become public. Possibly embarrassing information about the complainant may come to light. And suing one's employer makes it difficult for one to continue working in the same place.
The accused's wishes are also not fully served though use of litigation as a resolution method. Confidentiality cannot be preserved in a court trial. Further, trials do not focus on changing attitudes or allowing individuals to understand where they went wrong.
Finally, litigation fails to meet the needs of the employer whose first consideration is cost. Litigation is expensive. Mediation costs much less. Once the parties have faced each other in court, the working relationship has been destroyed, and the employer will likely lose one or both employees. In addition, those left in the workplace will likely take sides, thus causing productivity and atmosphere problems for the remaining work force.
Mediation, on the other hand, meets most of the objectives of both parties and of the employer, as well. It allows the disputants to work out their own solution - so it can be fashioned to meet the needs of both parties.
Mediation can keep the dispute confined between the parties, thus preserving confidentiality. Since the claim remains confidential, negative career repercussions are less likely. If a resolution develops, the victim may resume his or her job with the company.
The process allows the victim to air frustrations and fashion a remedy that will allow him or her to feel whole again. Some such remedies, not available through litigation, include apologies and promises of help in attaining another job. In cases where the employer has acted unfairly in the past, such unfairness can be rectified through mediation. For example, the employer can agree to reinstate the complainant or give an unjustly withheld promotion. Harassers can be transferred, fired, or reeducated. The remedies fashioned through mediation will tend to focus less on assigning a monetary value to the problem and more on redressing the true inequities involved.
Mediation also meets the accused's objectives. The accused will have an opportunity to clarify his or her side of the story. The confidentiality of the proceedings will allow him or her to resolve the situation without public disparagement, so exoneration without public disclosure of the charges becomes possible. If the charge resulted from a misunderstanding, the miscommunication can be worked out through mediation without the parties' positions becoming polarized. Mediation also allows the well-intentioned harasser to learn from his or her mistakes and make amends for the unintentional harm inflicted.
The employer benefits from mediation because it is quicker and less expensive than litigation. Further, because of the confidentiality of the process, the work force will be less affected by the charges. Since mediation does normally not involve the examination of witnesses, this process provides less disruption of the work force; workers will not need to take sides in the dispute, and interference with the harmony and productivity of the workplace will be avoided. Finally, mediation promises less stress than litigation for all parties involved.
The appropriate form of mediation will depend on the facts of the case and the stage of the dispute brought to mediation. The four-phase model is appropriate where the problem is reversible (e.g., where the victim just wants the behavior to stop and does not necessarily wish to punish the alleged harasser.)
This model works best in sexual harassment cases that arise from a misunderstanding or where the unwelcome behavior results more from the habits and outlook of the harasser than from selfish or malicious motives. For example, a male supervisor who constantly tells women they are too beautiful to work so hard at the office may think his comments are complementary. He would happily stop if made to see how derogatory it is. Similarly, a manager who starts every staff meeting with a dirty joke may change the agenda if shown, through mediation, that his practice brings discomfort, and not humor, to the atmosphere.
In these types of situations, the four-phase process model which allows the parties to meet and discuss their own feelings and views will serve to educate the parties and restore their working relationship. This process also makes it possible for the victim to achieve the goal of, "I just want it to stop." This model also allows the alleged harasser to understand what he or she did wrong and to correct the behavior while maintaining current career status. The employer gets a cost-effective solution that allows retention of valuable employees and restores harmony to the workplace.
The four-phase model also works well in situations where the employer detects the problem early on.3 The first appropriate referral point would be upon filing the complaint with the organization. If, while making the initial report to the employer, the complainant states they just want the harassment to stop, the employer should suggest the four-phase model of mediation. This process might also be appropriate after a full investigation reveals harassment has occurred, if the harasser does not deny the conduct.
The four-phase model would not be appropriate in cases of quid pro quo harassment or where the harassment appears physically severe or maliciously motivated. In such cases, the employer must take immediate steps to end the harassment and insure that the conduct never occurs again in the workplace regardless of the desires of the reporting employee.
The settlement conference model works best in cases where the problem is not reversible, but can be contained (e.g., where a complainant has already filed a lawsuit or an administrative charge). At this point, the parties' positions are already fairly polarized and a face-to-face, rational discussion would be difficult. The added help of an active mediator-negotiator will give the parties the support needed to reach a resolution and still avoid the expense, stress, and public exposure litigation entails.
The settlement conference model may also work well after an investigation reveals harassment has occurred but the harasser still denies the wrongful conduct and threatens a counter charge. At this point, an effective mediator using shuttle diplomacy may be able to provide a reality check for the parties and bring them to a resolution short of counter lawsuits.
Even in cases of serious malicious sexual harassment, the settlement conference model may still constitute a viable alternative for employers. Transfers or terminations arrived at through the mediation process will likely be more acceptable to the harasser. Further, agreements arrived at in mediation can become contractual and, therefore, although voluntarily entered into, binding on the parties, thus preventing the harasser from bringing a counter suit against the employer for wrongful termination. Finally, the dollar amount needed to make the victim whole can be arrived at without resort to a jury which usually sympathetically sides with the plaintiff and often levies heavy penalties on employers that have good policies against sexual harassment.
Both forms of mediation allow the parties to design resolutions that meet their specific needs which might not be available through the court system. For example, in constructive discharge cases, an employer may agree to help the plaintiff find another job. In other cases, the victim may want a written letter of apology. In the long run, these solutions may help the plaintiff more than a monetary sum awarded by a jury.
Although mediation does present a preferable alternative to litigation for resolution of most sexual harassment cases, some situations do exist for which mediation is not appropriate. Where the investigation reveals that harassing activity pervades the workplace and involves a number of victims, mediation will not provide the appropriate form of relief.
Mediation also fails as an option if any party refuses to participate voluntarily. Mediation may not present an acceptable alternative when large power imbalances exist between the parties.4 But a good mediator should be able to overcome power imbalances by assigning advisors to each party and using tools learned through many prior mediations for balancing the parties' positions.5
By properly employing mediation techniques, employers should be able to successfully resolve the majority of sexual harassment claims arising in their workplaces. Employers can utilize the four-phase process model of mediation where the problem is reversible, and the settlement conference model where the situation is irreversible but containable. Where sexual harassment is pervasive, the parties refuse to participate, or power imbalances exist, mediation may not be a viable alternative.
2 A.P. Ordover, Alternatives to Litigation 96-97 (National Institute of Trial Advocacy, 1993).
2 H. Gadlin, "Careful Maneuvers: Mediating Sexual Harassment," The Negotiation Journal 7 (1991): 139, 143-150; M.P. Rowe, "People Who Feel Harassed Need a Complaint System with Both Formal and Informal Options," The Negotiation Journal 6 (1990): 161, 164-169.
3 R.A. Thacker and others, "Mediation Keeps Complaints Out of Court, HR Magazine (May 1994), 72-73.
4 M. Irvine, "Mediation: Is It Appropriate for Sexual Harassment Grievances?" Ohio State Journal on Dispute Resolution 9 (1993): 27, 36-38.
5 H. Gadlin, "Careful Maneuvers," 150.
Beth Whittenbury is an attorney, author, mediator and fact-finder working in the areas of discrimination and sexual harassment. Based in the Los Angeles South Bay Area, she is Fellow of the American Bar Foundation, a distinction available to only one third of the top one percent of attorneys from each State. Ms. Whittenbury recently published the book: "Investigating the Workplace Harassment Claim" with American Bar Association Publishing which can be viewed here. .
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