| MEDIATION INFORMATION |
| MEDIATION |
| 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 mediator. The parties in a mediation do not have to be represented by attorneys, although they may choose to hire attorneys to represent them. 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 mediation. 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 remain neutral. 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 other disputes Landolt & Associates (817) 291-3999 www.landoltlawoffice.com |