Mediating the Sexual Harassment CaseApril 1, 2019 – Insight
As part of the #MeToo movement, many new laws, regulations, and workplace policies regarding sexual harassment have been enacted. As a result, we are seeing an increased number of claims involving harassment.
Courts and parties are favoring mediation more often with these claims because of the sensitivity of some situations and the desire for confidentiality and a quick resolution. This is especially so with claimants who are minors or who are victims of prior abuse. Mediating these claims often requires a different approach by the parties and especially by the mediator. For the parties, the selection of a mediator who has experience dealing with claims of sexual harassment and an understanding of the law is very important, as many settlements will be based on the experience. It is also important to take a more empathetic and reflective approach to such mediation.
Once the mediator is selected, the mediator should have early discussions with counsel, and possibly parties, on the facts and the circumstances under which the mediation should take place. If a minor is involved, there may be parents, school officials, legal guardians, or others who need to participate. Court approval of any settlement may also be a consideration.
If the case does not involve a minor, it may be important for a face-to-face session to take place or for a representative of an employer or business to hear directly from the victim of the harassment, depending on the nature of the claim. Typically, a joint session between the accuser and the accused does not occur.
Once the process has been agreed upon, it is important to have a neutral setting for the mediation, usually the office of the mediator. Depending on the case, it will likely take several hours and, on occasion, several days, depending on the complexity of the claim and especially if multiple claimants.
Because most sexual harassment mediations do not involve face-to-face opening sessions with the accused and accuser, it becomes important for the mediator to have independent caucuses to assist the parties in developing a framework for productive dialogue and to address the various issues and interests. It is also important in these cases for the attorney of the accuser to have a good understanding that sexual harassment claims can be resolved and a realistic understanding of the law in light of the facts being alleged. In many cases, the facts being alleged may certainly be inappropriate under the circumstances, but they may not be sexual harassment under the law. Therefore, the elements of objectivity and legitimacy become highly relevant in resolving the claim. Similarly, counsel for the accused and the employer need to understand the implication of the claims(s), the law, and possible outcome if it is not resolved.
Once the process has started and the private sessions are in motion, the parties, their counsel, and the mediator must begin evaluating the strengths, weaknesses, and practical realities toward finding a resolution. In many sexual harassment settlements, parties do not simply settle on the basis of a monetary payment. Therefore, brainstorming toward a broader solution is often essential.
A variety of settlement options other than monetary payment exist. Examples of such solutions include:
- Development of a policy against harassment; Training of employees;
- Broader investigation of claims;
- Discipline or termination if actual harasser(s) engaged in violative conduct;
- Reinstatement if the claimant has quit (constructive discharge) because of the harassment; Implementation of a complaint procedure;
- Actions to prevent the conduct from occurring to others;
- Costs of counseling;
- Donations to harassment support organizations;
- Apologies; and
- If still employed, establishing alternative working arrangements or reporting hierarchy.
With regard to the nature of the settlement, confidentiality is a consideration. Currently, some states do not allow confidentiality in settling such claims. Also, under certain tax provisions, if the parties enter into a confidentiality clause in a sexual harassment case, the employer may not be able to deduct the payment, and the accused may have to treat it as income. These facts make it essential for all involved parties to be aware of the implications of confidentiality and obtain tax advice if they have questions. In any mediation, the parties should not leave without a signed agreement or a settlement agreement term sheet. With all the effort and expense in reaching a settlement, there should be no misunderstanding of form, terms, and the fact it is settled.
Mike Hawkins is a Partner, Mediator and Arbitrator at Dinsmore. He is former Chair of the ADR Committee and Past President of CBA.