Workplace Articles By BCC
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.
Copyright 2006