Workplace Articles By BCC
I don't want to make a big deal out of it...I just want him to stop asking me out.
I don't think she means anything by it, but I feel uncomfortable when she touches my shoulder every time she greets me.
I want to have a productive, professional working relationship, and I'm afraid if I say something, especially if I make a complaint, things will get worse.
I'm sorry I ever spoke up. Now that the company did their investigation, it feels more awkward than ever.
The awareness of sexual harassment is heightening and employers are being held to increasingly higher standards for maintaining an environment free of sexual harassment and for effectively resolving possible sexual harassment situations. In the face of these trends, organizations are looking for a broader range of methods to avoid potential liability and maintain work environments that are comfortable for all employees.
Employers are experimenting with creative alternatives to the more formal approaches of resolving sexual harassment situations and, in many cases, are finding success. Recognizing each situation must be handled on a case-by-case basis, the nature and severity of the allegations, the working relationship of the involved parties, and the particularities of the circumstances will dictate the appropriate response. In many cases, a more informal approach may lead to the most effective resolution.
Alternative Dispute Resolution (ADR), which includes mediation, is a new and growing field which, in the appropriate situation, can successfully be applied to sexual harassment issues. Mediation, as an alternative to or in the aftermath of a formal investigation, can help to minimize if not eliminate many of the problems encountered by employers who use more traditional methods of resolution.
The basic goal of mediation is to facilitate a negotiation process between the parties to effectively define a desired outcome, thereby resolving conflict. In the case of sexual harassment which, in nearly every instance, involves an imbalance of power, the goal of mediation typically is aimed at one or more of the following:
- To provide a controlled and safe opportunity for each party to express his/her perspective of the situation and feel heard,
- To have the party who has engaged in offensive behavior understand the impact of the conduct and, if desired by the recipient, offer an apology,
- To define the parameters of a mutually respectful work relationship in order to proceed into the future rather than focus on the past or, more simply put,
- To negotiate an appropriate remedy to the situation.
Assessing Mediation as an Option
Before deciding on implementing an alternative resolution strategy it is critically important that the employer conduct a thorough assessment to determine the appropriateness of such an option. In order for mediation to be successful the process must be voluntary for all parties involved, one to which they are open and, most importantly, confidential.
Above all else, the recipient of the alleged harassment must not feel coerced or pressured to participate in the mediation. The vast majority of people who experience sexual harassment remain hesitant to complain about the behavior for fear of retaliation, among other reasons. Therefore, a careful appraisal must first be conducted with the recipient of the harassment to ensure that she, or sometimes he, can freely participate in the mediation without fear of reprisal.
Beyond these factors, there are additional considerations to explore before using mediation as a resolution strategy. Is the situation mediable? That is, can an honest resolution truly be mediated? If the accused has a history of harassing behavior or agrees to participate at the employer's request only to avoid further corrective action or, if after an investigation there has been a clear finding that the harassment policy has been violated, mediation would most often not be the appropriate alternative.
However, in many situations, for example, when the behavior was perceived differently by the parties, when intent has been misconstrued, when the conduct was subtle and an isolated occurrence, or when there has been genuine miscommunication, mediation can often provide the most effective resolution.
How Mediation Can Work
If the assessment indicates that conditions are appropriate to proceed with mediation, it will be important to ascertain who will facilitate the process, and who will be present. Because each situation is unique, there is no one correct way to make this determination.
In terms of selection of a facilitator, there are potential advantages and disadvantages of using either an internal or external mediator. The most obvious benefit of using someone outside of the organization is the greater possibility that this individual will be perceived as more credible, neutral and unbiased, without an interest in any particular outcome. However, because an external mediator will most likely be unknown to the parties, there initially might be heightened discomfort. Conversely, an internal facilitator might engender a higher level of comfort due to familiarity, while raising concerns about neutrality.
Regardless of whether the facilitator is external or internal it is critical this person has a clear understanding of mediation principles, has a clear understanding of sexual harassment-related issues, is credible, and is able to guarantee confidentiality of the process.
In some situations, co-mediators might be the ideal choice. For example, if the conflict exists between a woman and a man, a male-female team of mediators might present the most productive method for resolution.
In particular circumstances, for example, when the complainant has been traumatized but remains open to more informal resolution, "shuttle" mediation, in which the mediator works with each party separately, might prove to be the preferred option. In such a situation, the mediator might ask the complaining party to put her or his wishes in writing and, with the use of that document, negotiate a resolution with the other party.
Mediation in these circumstances is being used as an alternative method of fulfilling the employer's obligation to take action when knowledge of a potential harassment situation exists. Therefore, it is imperative that a company representative be involved to ensure that the process is both a suitable as well as effective response. In most cases, while it would not be appropriate for such representative to be present in the initial individual interviews (unless that person will be conducting the mediation), it would be proper to attend any or all of the mediation sessions, particularly the final session/s where agreement between the parties is hopefully reached. The employer is ultimately responsible to hold all employees accountable to the company policy prohibiting harassment and, in this case, to any agreement that is attained as a result of the mediation process.
Rationale for Mediation
While preventive measures, such as adopting and strictly enforcing strong anti-harassment policies and providing training to all managers and employees can be the most effective tools for addressing the issue, organizations still have the challenge of managing sexual harassment situations when they occur. Organizations that have experienced the time-consuming, resource-draining, and often costly experience of conducting an investigation and implementing corrective action, know the formal resolution process often fails to truly resolve the issue. While the employer's legal obligations may have technically been met, the very process itself could produce an even longer list of problems.
The complainant may feel further traumatized by the invasive and often embarrassing nature of the investigation. The alleged harasser may feel victimized. The rumor mill can exacerbate the situation, affecting greater numbers of employees and negatively impacting morale and productivity while increasing hostility and animosity. Despite efforts to limit the scope of the investigation and minimize the number of parties involved, it is the rare organization that can assure the level of confidentiality that prevents knowledge of the situation from being spread throughout the workplace.
If the complaint cannot be substantiated the matter could even worsen. When there is a finding that a violation has occurred, and the parties must continue to work with each other, life can be miserable not only for the individuals directly involved, but also for others with whom they work. Doing traditional fact-findings or investigations does not guarantee a successful resolution.
While mediation does not guarantee effective resolution in all circumstances nor does it relieve the employer of its duty to investigate complaints, as necessary, it offers a viable alternative to the more traditional methods of corrective action and resolution.
Copyright 2006