With the increase in access to alternate dispute resolution mechanisms, the time has now come to critically analyse if all kinds of disputes are eligible to go in for out of court dispute resolution mechanisms. Of these, the case for mediating sexual harassment cases is now being hotly debated.
Mediation seems to fit the harassment rubric ideally for it allows the parties to express strong emotions, allows the victim to confront the harasser directly and does away with the emotionally and psychologically exhaustive court procedure for seeking justice (Young Mediate.com, 2006). But mediation is not a one-size fits-all method of dealing with sexual harassment and each situation deserves to be considered before sending the dispute in for mediation.
The Legal Framework
It is common knowledge that most companies have a mandatory arbitration or mediation clause, along with a non-disclosure clause, in employment contracts with respect to sexual harassment allegations. In the US, the recent Supreme Court ruling encourages companies to add in mediation and arbitration clauses in employment contracts (Wienstein Carthage Standard, 2018). In India, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 makes it compulsory for companies to create an Internal Complaint Committee (ICC) for receiving complaints of sexual harassment. (Government of India, 2015) The Internal Complaints Committee first sends in the complaint for conciliation or mediation. If a settlement is not reached, then a copy of the complaint is given to the accused who has to a file a response within ten days. The employer then provides monetary compensation or a transfer of the employee (Seth PSA Legal Counsellors, 2017)
Mediators, as per their code of ethics, cannot encourage mediation in situations wherein there is an imbalance of power. However, imbalances of power are quite frequently found in cases that come in for mediation. What truly matters is whether the neutrality of the mediator and the weaker party’s self determination is being brought into question due to such a power imbalance. Here, the mediator plays a hugely important role (Voyles Mediate.com, 2004).
Mediation is known to provide confidentiality and freedom of negotiation; however, it need not necessarily bode well for the victim, especially in cases where one’s boss is their harasser. Mediation may seem to ease up the process and keep the situation confidential but this does not mean that every case of sexual harassment can be mandatorily sent in for mediation. In some cases, victims can barely speak to their harassers and mediation would not be productive at all. In cases where you are in a mediation with the boss, out of court settlement (which is what mediation often looks like) will prove counter productive as the victim might be black-marked in the future. These are all cases in which there is an acute imbalance of power that calls into question the party’s ability to determine their choice of outcome and their acquiescence can be mistaken for a choice that is voluntarily made by them. Notwithstanding all of this, even if it goes in mandatorily for mediation, the complainant must be given the chance to opt out of the process at any time so that they don’t feel compelled to settle and the mediator must be brought in from outside to ensure impartiality.
Mediation as a Choice
In a recent study, it was often found that workplace sexual harassment victims merely want the behaviour to stop and are not too concerned about the punishment (Hicks Mediate.com, 2000). Most complainants are afraid of the consequences that taking up the issue will have on them. Non-addressed sexual harassment claims are a looming public health crisis for they create severe depression and anxiety, raising blood pressure and cortisol levels of the victim (The Conversation, 2018). Mediation in this scenario proves effective because it opens up communication channels and is cathartic for the victim, dealing with the situation in a quick and effective manner.
Facilitative mediation, in particular, can be especially suitable for dealing with sexual harassment claims. In this, the mediator tries to facilitate conversation by bringing out underlying interests and long-lasting solutions. The hallmark of a good facilitative mediator is that he or she is completely neutral and may not bring to the table any innovate solutions to the parties’ problems. He or she merely directs the conversation towards productivity (Klein Mediate.com, 2018). This in turn, ensures mediator neutrality and he/she gets an objective view of the parties’ ability to determine their own outcomes.
Mediation can also be fruitful in cases where the victim and the harasser do not have a close relationship or any relationship at all. This is because their personal power imbalances do not translate into a failed mediation as their power of self-determination is not compromised by the fear of immediate consequences.
Nevertheless, whether mediation is a good method of dealing with sexual harassment complaints is a complex question for it involves many factors. One must think about who the complainant is, who the complaint is against, the nature of their relationship, the seriousness of the event to the victim and the parties’ powers of self-determination. One can make educated decisions regarding this but at the end of the day, mediation should be entered into at the choice of the complainant without forcing anything on anyone.
[This article has been contributed by Aaditi Pradeep, a first-year student of Jindal Global Law School, Sonipat.]
- Young, Paula. 2006. “The “What” of Mediation: When Is Mediation the Right Process Choice?. com. October. https://www.mediate.com/articles/young18.cfm#23
- Hicks, Tom. 2000. “Mediation in Sexual Harassment Cases.” com. September. https://www.mediate.com/articles/hicksT8.cfm
- Voyles, Rick. 2004. “Managing an Imbalance of Power” com. October. https://www.mediate.com/articles/voylesR3.cfm
- Klein, Stephanie. 2018. “A Modest Proposal to Mitigate Sexual Harassment and Misconduct in the Workplace” com. April. https://www.mediate.com/articles/kleins2.cfm
- The Conversation. 2018. “Workplace sexual harassment is a public health issue and should be treated as such.” June 29.
- Weinstein, Carlos. 2018. “It Just Got Harder To Sue Over Sexual Harassment In The Workplace.” Carthage Standard. July 5.
- Seth, Sakshi. 2017. “Workplace Sexual Harassment: Are Laws Really the Savior?”. PSA Legal Counsellors, XX. http://www.psalegal.com/wp-content/uploads/2017/01/Labor-Bulletin-Issue-XX.pdf
- “Constitution of Internal Complaints Committee Mandatory for All Organizations of State/ Central Government and Private Sector”. 2015. Pib.Nic.In. http://pib.nic.in/newsite/PrintRelease.aspx?relid=133063