|INFORMATION ABOUT MEDIATION AND ITS USE IN
CASES OF SEXUAL HARASSMENT AND BULLYING
Mediation is a form of Alternative Dispute Resolution that can be
helpful in resolving cases of sexual harassment and bullying. In
Mediation, a neutral third party, trained in dispute resolution,
helps both sides negotiate a settlement in an informal setting in
order to avoid the costs and uncertainty of litigation.
Please note that it is not usually recommended for a Student
Mediator to mediate a bullying/harassment dispute between
Students. Only after the bully/harasser's conduct has been
addressed should mediation be attempted with a trained adult
The parties in a mediation do not have to be represented by
attorneys, although they may choose to hire attorneys to
Mediation is non-binding, and the parties themselves set the
parameters for resolving the disputes. Mediation is intended to
be a fair and efficient process where a neutral mediator can help
the parties to reach a mutually agreeable resolution. Mediation
gives the parties the opportunity to discuss the issues in
dispute, to clear up misunderstandings, to determine underlying
interests or concerns, to find areas of agreement, and then to
transform the areas of agreement into a workable resolution.
THE MEDIATION PROCESS
Once a mediator has been contacted, the mediator will send out
a questionnaire to both the harasser and the victim. The
questionnaire will help the mediator to understand the positions
of each party. If you choose to have an attorney represent you at
the mediation, the attorney will handle the pre-mediation
paperwork for you. Usually the parties will split the cost of the
The day of the mediation, there may be two or more stages
involving a "general session" and "caucuses". A general
session occurs at the beginning, called the "Opening Session,'
where the mediator will have both parties, their attorneys (if they
have them), and the people the parties brought for support all
meet together at a large conference table. The mediator will
introduce himself, go over the process and rules, and give each
side a chance to speak if they choose to. You do not have to say
anything to the other side if you choose not to do so.
The mediator will then separate the parties into two rooms or
"caucuses." The mediator will go back and forth between the
two rooms to see if he can work towards a resolution between
the parties. It is possible that the mediator will bring the parties
back into a general session, or he may keep the parties in
separate rooms the whole time.
At the end of the mediation, both parties will sign paperwork
that outlines the terms to which they agreed during the
mediation. This paperwork is a binding contract, even if it is just
an outline. If there are attorneys involved, the attorneys may want
to take copies of the paperwork and create a formal agreement
in the following days for each party to sign. If there are no
attorneys, the parties will use the paperwork signed at the
mediation as their final settlement agreement.
NOT ALL MEDIATORS SHOULD HANDLE SEXUAL
HARASSMENT AND BULLYING MEDIATIONS
Some of the best mediators available should not be the ones to
handle sexual harassment mediations. Commercial Mediators
who are attorneys, judges, and others have been trained in
innovative techniques for resolving mediation disputes; however,
these techniques can have negative consequences for parties
involved in a sexual harassment mediation. The competitive
strategies used by the best commercial mediators are geared
toward a monetary settlement first and foremost.
The parties in a sexual harassment or bullying mediation have
different interests not found in other mediations.
Instead of money being the driving factor, both the victim and the
harasser have other interests that will be frustrated if the goal of
the mediation is strictly a monetary one. For the victim of sexual
harassment or bullying , his or her primary interest involves
safety. Their sense of safety has been compromised, and
measures should be taken both during the mediation process
and also incorporated into the settlement agreement where the
victim's sense of safety is recognized and restored.
For the harasser, his underlying motivation is "saving face" and
moving forward in a way that will allow him to put the incident
behind him. The harasser will be more open to considering a
monetary payment to the victim if his concerns and viewpoint are
not ignored. Without addressing the harasser's issues, the
harasser may continue to bother the victim or feel driven to take
revenge against the victim for the complaints, for the mediation,
and for the settlement. The mediator should also keep the
harasser's motivation in mind during the mediation session to
ensure the mediator does not inadvertently cause new,
additional problems for the victim by purposely ticking off the
harasser. While applying antagonistic pressure to a party in a
commercial mediation may move the parties toward a
settlement, a mediator who tries this technique with a harasser
may end up making the situation worse for the parties instead of
achieving a resolution.
The mediator should be able to facilitate a plan for safety for the
victim and also help the parties to establish a peaceful
resolution, where both parties can put the matter behind them.
While compensation is certainly one factor in a mediation, the
monetary figure alone will not resolve the harassment situation.
Any ongoing non-monetary issues for the parties that are not
addressed during the mediation will leave doors open for further
problems between the parties down the road.
HOW TO PICK THE RIGHT MEDIATOR
Look for mediators who are trained in "Interpersonal Mediations"
or "Victim-Offender" mediations. Try to find a mediator who
handles sexual harassment and student issues as a major part
of their mediation practice. Try to avoid mediators who do mostly
"Commercial" mediations (business transactions, construction
issues, personal injury cases). If they claim they handle sexual
harassment cases, find out what percentage of their mediation
practice is really focused on harassment cases.
Some tips and red flags:
A mediator cannot give legal advice, even if the mediator is an
attorney. He may talk about legal issues, but nothing he says
should be taken as legal advice. It is a red flag if the mediator
insists you follow his advice, because any decisions should be
made by the parties themselves. Remember that even if the
mediator is an attorney, he is not your attorney. In order to
facilitate a workable resolution between the parties, he must
It is a good idea to avoid mediations where the victim, the
harasser, and the school administrators are all present at one
three-way mediation. In the case of workplace harassment,
avoid mediations where the victim, the harasser, and the
employer are present for one three-way mediation. If this type of
three-way mediation takes place, the victim should be
represented by an attorney, and separate final paperwork should
be signed between the victim and each one of the parties.
Take food with you, dress comfortably, bring a magazine, and
bring Tylenol. There are some mediators who try and pressure
the parties into a settlement by not allowing breaks or by keeping
the parties until the early hours of the morning.
Bring a family member or a friend with you for emotional support,
even if you have an attorney. Go over with your friend or family
member exactly what your goals are, and ask them to help keep
you focused. It is a red flag if the mediator or the harasser will
not allow you to bring someone with you.
|Texas Mediator handling Sexual
Harassment, Bullying, and
Landolt & Associates