PREMi ADR SPOTLIGHT: Important considerations for sexual harassment mediation

By Earlene R. Baggett-Hayes

It is an undisputed fact that one can compose a dissertation on workplace sexual harassment mediation and fail to give it justice, proper attention, or the thorough analysis it deserves. This article will briefly address a few of the numerous nuances that should be considered in conducting these mediations.

The most difficult workplace sexual harassment cases are typically those in which the accused denies the inappropriate conduct; the accused claims that the behavior was consensual; or the accused suggests the complainant started or encouraged the conduct. Whether the mediation covers these types of issues, or something less innocuous, the mediator considerations provided herein may assist in structuring and conducting a successful mediation. The following scenario is being provided as a backdrop for the considerations discussed. Generally, the parties will share their interests; however, it may take some mediator strategy to delve into their underlying and more critical interests. Also, interests usually vary depending on the pervasive nature of the claim.

Dara works at Company XYZ. Trevor, a non-supervisor, is Dara’s co-worker. They have worked in the same department for two (2) years.

Both are single. Dara stated to XYZ that Trevor began to send her flowers without her permission about six (6) months ago. About four (4) months ago, he began to text her about how lonely he is since his girlfriend left him. Two (2) weeks ago, he telephoned her during non-work hours to ask her to go to a movie. Dara thinks she saw Trevor drive past her apartment last week. Yesterday, Trevor walked behind her in her work area, touched her hair, smiled, and told her that it was beautiful. Dara has declined overtime every day for the past two weeks because she is uncomfortable and afraid to work alone with Trevor

Interests of the Parties

Workplace sexual harassment mediations typically have three (3) parties who are involved and have a stake in the outcome. The complainant usually is desirous of having the employer make her whole for the wrong she has suffered. She may or may not be interested in seeing the accused undergo some level of punishment. She may also have an interest in avoiding embarrassment or emotional trauma.

The accused may be interested in retaining his job and receiving full exoneration. He may desire to keep the matter private. The accused may also be interested in resolving the matter peacefully with the complainant.

The Employer is typically interested in resolving the claim quickly and quietly while avoiding or minimizing costs. The Employer also seeks to maintain a harmonious work environment and to uphold company policies against harassment of any form, as well as avoid internal or external publicity.

Consider the Process Design to be Utilized

It is important to recognize that no one size fits all. No two cases are alike. Mediating sexual harassment issues requires early process design. Any process design must take into account the level of the dispute and the general circumstances of the particular case. The mediator must be equipped to use varying approaches and must be ready, willing, and able to adapt depending on the circumstances. Two of the several distinct process designs are the Four-Phase Process model and the Settlement Conference model. The goal of the Four-Phase Process model is to preserve the working relationship and fashion a resolution. The complainant wants the behavior to stop but is not necessarily looking to punish the accused. In this model, parties talk to the mediator and to each other, listen to each other, communicate their frustrations in a positive manner, acknowledge that they understood what was said (whether they totally agree, or not), and seek and receive validation, with the hope of reaching a resolution. The mediator assists the parties by facilitating a discussion of options for reaching a resolution and does not suggest or make decisions for the parties. The mediator encourages creativity in the discussion of options and invokes reality-checking skills to keep the parties focused and determined to reach a resolution. The process typically concludes with a win-win, as opposed to the win-lose situation that results from litigation.

Another model is the Settlement Conference model. The goal of this model is to avoid having to appear in court or trial. This process typically begins with pre-mediation meetings with all parties. The mediator provides an overview of the process and the parties summarize their respective positions, in joint session, with the possibility that additional confidential information may be shared in separate caucus meetings.  Sometimes, after the mediator hears everything and the parties have an opportunity to share their concerns, the mediator may present a settlement proposal, which the parties consider and either accept or work on tweaks that may allow for a resolution. In other instances, the mediator may shuttle back and forth in an effort to work out a mutually agreeable solution. Although the two models have different approaches, they both provide opportunities to frame resolutions in the mediation process. In each model, the mediator should remain neutral, humble, and empathetic, empowering the parties to govern the outcome.

Consider Conducting Pre-Mediation Meetings

Pre-Mediation meetings are of huge importance. In addition to allowing the mediator to obtain initial information about the matter, pre-mediation meetings provide the mediator with the opportunity to meet privately with the participants and develop comfort and trust between them, which assists in providing a recipe for resolution. Pre-mediation meetings can be effective in identifying the emotional needs of all parties and unraveling important information. At some point during the pre-mediation meeting, the mediator should ask (whether directed to Dara, Trevor, or XYZ Company): “What are your goals for this mediation today? What do you think may be helpful for me to know in facilitating this mediation? Many mediators request pre-mediation written summaries prior to the mediation. While attorneys may routinely provide these documents, non-represented clients may find them useful for organizing and expressing their thoughts. Pre-mediation written statements need not be long and arduous and are generally more favored by the parties when the request is that they not exceed two (2) two or three (3) pages.

Consider Who Should Attend/Participate

Prior to the mediation, the mediator should confirm who will be in attendance. While the complainant is likely to be present, the employer will have company representation, and in some cases, an insurance representative. It is important that decision-making authority is present during the mediation process. The accused may or may not be present. This varies from mediation to mediation. Dara may want to bring someone with her such as a friend, relative, co-worker, or clergy to assist with emotional trauma, fear, uncertainty, or anything else. The Mediator must gather concurrence in advance of the mediation regarding who will be present. It must be clarified whether additional individuals will participate in the process or serve as moral support. Typically,  even if others are allowed to attend, they are not allowed to comment or participate in the process. If they are allowed, it is important for the mediator to discuss with them the confidentiality requirements and other norms associated with the mediation process. The mediator may also want the parties to provide a separate confidential page entitled, “For the Mediator’s Eyes Only,” which provides possible settlements that they think all parties may agree to.

Consider Conducting Joint Sessions and Private Caucuses

The mediator must determine the parties’ readiness for joint sessions or private meetings very early during the mediation preparation. The mediator should ask the participants about their preferences. If the mediation is regarding claims that are very personal such as sexual assault, the parties are likely to prefer to mediate using private meetings rather than joint sessions.

Caucus provides the mediator with the opportunity to further gain trust. The parties are invited to safely share confidential information and express their underlying needs and interests. The mediator may employ skills such as asking the parties to state their understanding of the other side’s position and the hurdles in their own case. Reality-checking may also be carefully employed during the caucus.

Dara may be interested in confronting Trevor to tell her side of the story, communicate frustrations, and feel complete again. Or she may not want to face him at all. Trevor may have similar wishes. Even if the parties have a particular choice at the beginning of the mediation, things may change. It is incumbent upon the mediator to provide deference to the feelings of the parties, particularly the complainant.

If the mediator utilizes separate meetings, they can be lengthy. It is helpful to prepare clients and give them homework while they are not in the caucus to keep them engaged. Homework may include asking Trevor, Dara, and XYZ Company to consider how they possibly could have handled the situation(s) differently or how their conduct might change in the future, or requesting that they brainstorm ways to resolve the situation.

Consider Providing a Safe Environment

Participants in a mediation must feel safe. This not only entails what they say but also what they do. The mediator must provide for a safe environment from the inception through the conclusion of the mediation.  An initial question is where should the mediation be conducted.
This could potentially include staggered arrival/departure times, separate parking, separate meeting rooms prior to the mediation, separate restroom and break facilities, etc. The mediator must be mindful of the responsibility to avoid potential confrontations. The same is true regarding the mediator’s responsibility to appropriately address verbiage or body language that may “push the buttons”  during the mediation. Some Agreement to Mediate forms specifically forbid any threatening words, acts, or weapons, and confirm the availability of safety measures.

Consider How an Apology May Be Handled

A carefully crafted apology can provide  a road to resolution. Alternatively, an apology can be a disaster if not effectively executed. Typically, an apology is not suggested by the mediator. However, if the words being expressed during the mediation, whether in a joint or private session, tend to sound remorseful, the mediator may say, “Trevor, it sounds like you would like to express something to Dara…What would that sound like? …What would you say?” The mediator may be instrumental in helping Trevor to couch the terms in a receptive format. The same may be true for XYZ Company. Also, the Mediator may say to Dara, “I’m wondering what your response may be if Trevor (or XYZ Company) expressed that he regrets what happened and how it made you feel. How might you respond to something like that?” Again, Dara’s response may open inroads to resolution, and facilitation by the mediator may be instructive. An apology typically requires that the mediator spend time with both sides to determine what the sincere apology will look like and whether a meaningful acceptance of the apology is likely to occur. Beyond the apology, there may be acts of making amends.

Consider Options for Resolution, and More Options, and More Options ...

Options for resolution may include monetary amounts or non-monetary provisions and incentives. A discussion of options may focus on a need to admit or acknowledge the complained- of situation. The mediator may facilitate a brainstorming session, whether it is in joint or separate meetings. It is helpful for the mediator to encourage the participants to verbalize as many options as possible and postpone the evaluation of the options until a robust brainstorming session that lists the options has taken place. It may also bolster the discussion if the mediator has a broad knowledge of options that may be considered. The mediator can also effectively ask questions that may generate  ideas. Among the plethora of options that may be discussed between Company XYZ, Trevor, and Dara are: re-training, transferring, termination, pay for missed overtime, providing outside counseling, monetary compensation, structural changes, job modifications, instituting a harassment consultation hotline, periodic “check-in” meetings, additional company-wide training, an apology, etc. After options have been sufficiently generated, the participants may focus on those that may work toward a resolution, tweaking them as appropriate.  

Conclusion

This article merely scratches the surface in discussing important considerations for mediators in conducting workplace sexual harassment mediations. Because these cases tend to be emotionally charged, it is important to be able to adjust the temperature and delicately move the participants to a problem-solving mode to be able to focus on the future rather than the past. These considerations will hopefully be instrumental in accomplishing that task. As a result, Dara, Trevor, and the XYZ Company would be served.
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Earlene Baggett-Hayes serves as an attorney, mediator, arbitrator, fact-finder, and trainer. She is the principal of The Law and Mediation Center PLLC in Pontiac. She has practiced in the field of Alternative Dispute Resolution (ADR) for over twenty-five (25) years. She focuses primarily on Employment, Labor, Business and Domestic Relations disputes nationally. Among Earlene’s affiliations are the American Arbitration Association, National Association of Distinguished Neutrals, and the National Mediation Board. Earlene received the State Bar of Michigan “Distinguished Service in ADR Award,” and has been inducted into the International Academy of Mediators as a Distinguished Fellow. She is also a member of Professional Resolution Experts of Michigan (PREMi).