Mediation as a Solution in Harassment Cases

Written by John Curtis on . Posted in Mediation

You’ll often find lists of tips for dealing with harassment at work. One that I recently came across advised that we take a “work stress inventory to identify” sources of stress and write a “joy journal to focus on what’s going right.” It can be hard to focus on the joy when someone is using offensive and/or threatening language against you or making your work life intolerable. You don’t need an inventory; you know where your stress comes from. But what you may not know is what to do about it. There is a solution that is often overlooked in the workplace: mediation. Can it work in harassment cases?

The short answer is, yes. Mediation can work in harassment cases. Many harassment complaints are a function of poor communication. What can happen is that Person A says something to Person B that offends or hurts. Person B misinterprets the intention and assumes that Person A wished to hurt them. From there, it can just spiral out of control, and subsequent actions or words reinforce the original analysis that Person A’s intention was to be hurtful. By now, the situation has escalated.

Not all cases are like this. We must be perfectly clear on this. In many cases, Person A really is intending to be hurtful, to cause pain, to humiliate, or to intimidate. Person A is harassing Person B, and there is no “miscommunication” around intent at all. But it is in the cases that poor communication is really at the root of the problem that mediation can be most helpful. Poor communication really is the low hanging fruit of conflict resolution.

Mediation makes sense here because it is all about encouraging communication, testing assumptions, making sure both parties understand each other, and giving each party the opportunity to talk and listen. It provides the parties the chance to understand intentions and to address them. It is important that both sides can unravel the situation without assigning blame, which is very costly, complex, and time-consuming.

Arbitration, complaints, and litigation are ostensibly aimed at setting things right, but it might benefit both parties much more to undo that original misunderstanding and carry on. Often,  what happens with a harassment complaint is that once the process has started, people realize that it’s out of control.  People go off on sick leave, an investigator starts interviewing people, the rumor mill gets ramped up and so it goes. It is understandable that many people want to backtrack, to undo that harm, and mediation allows them the opportunity to do that.

Mediation may not be the ideal solution for cases in which the harasser is very much aware of the damage that he/she is causing. In that case, it might take a court case or disciplinary action to remedy the problem. In other cases, where poor communication is to blame, mediation can allow both parties to get back to work.  In my experience, even in the seemingly most egregious cases, people are basically good even though they sometimes do bad things.  Having a chance to set things right is good for everyone.

John Curtis

John Curtis

John Curtis is a successful lawyer with over 15 years’ experience in litigation focusing on Sport Law and Mediation Services. In addition, he is an expert in providing engaging, hands-on Conflict Resolution Training including Mediation Training, Negotiation Skills Training and Conflict Coach Training