Mediating Sexual Harassment Claims
Recently, there has been increasingly new laws, regulations, and workplace policies regarding sexual harassment. As a result of the #MeToo movement especially, we have subsequently seen an increase in the number of claims surrounding harassment. Considering many of these claims tend to be sensitive in nature, those involved often tend to defer to mediation to resolve these conflicts. This can be especially true with any claimants who are minors or victims of prior abuse. So how can you find a mediator that will be both effective and sensitive with these delicate issues? What is the most practical way to mediate a sexual harassment claim? Walton + Brown, LLP’s legal team can help.
While it might seem obvious, it’s important to choose a mediator who has experience dealing with claims of sexual harassment and an firm understanding of the law. Mediators should aim to take an empathetic and reflective approach. Once a mediator has been chosen, early discussions should occur between the mediator and counsel to fully understand the circumstances of the claim. Is the claimant a minor? Who is involved? What is the timeline? If a minor is involved there may be parents, school officials, legal guardians or others who will need to participate. It is important that the mediator knows all the facts and circumstances under which the mediation will take place.
After the process as been agreed upon by all parties, those involved must locate a neutral setting for the mediation (typically the office of the mediator, assuming they are an outside hire). The mediation process can take several hours to complete. Depending on the complexity of the claim, the process may take several days. It is rare that the accused and the accuser have face-to-face sessions during the mediation process. Therefore, it is imperative that the mediator has frequent and independent caucuses with both parties to help develop the framework for productive dialogue.
The accuser will invariably have their own attorney for the mediation process. Hopefully, the attorney is competent and understands the complexity of sexual harassment behavior in accordance with the law. In many cases, the facts being alleged may describe inappropriate behavior, but not necessarily establish sexual harassment under the law. Resolving these claims depends on the competency of those involved to identify these elements of objectivity and legitimacy. While not ideal, all parties involved must have possible solutions if a resolution cannot be reached.
Once the mediation process begins, the parties, their counsel and the mediator must evaluate the variables, strengths, weaknesses and practical realities of finding a resolution. Oftentimes in sexual harassment settlements, parties do not simply settle on the basis of financial compensation. Thus, broader solutions are required.
Below is a list of a variety of settlement options that can exist in a sexual harassment claim that will not include monetary payment:
- Discipline or termination of the accused
- Reinstatement of the accuser (assuming they resigned or were fired due to the harassment)
- Development of a policy against harassment
- Counseling sessions for the accused or other relevant employees
- Formal apologies
- Donations from the accused to harassment support organizations
- Actions to prevent the conduct from occurring to others
- Establishing alternative working arrangements or a reporting hierarchy
All involved parties should never leave a settlement without a signed agreement or a settlement agreement term sheet. Considering the effort and expense of the mediation process, there should be no misconception of the forms, terms and the fact that the matter is, indeed, settled.
Walton + Brown, LLP takes pride in having a successful serious personal injury and civil rights practice, unafraid to step into a courtroom and litigate cases to the fullest extent necessary. With over 450 lawsuits filed and over $18 million in settlements or verdicts won for our clients, Sean and Chanda bring a record of success. Sean and Chanda have been awarded Top 100 and Top 40 Under 40 designations as trial attorneys.
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