[This article has been authored by Adrija Bhowal, Legal Associate at Obhan & Associates.]
Keywords: Mediation, Workplace Sexual Harassment, POSH Act.
Arbitration mainly deals with labor and contractual disputes. Even so, in today’s day and age, numerous grievances, especially in the workplace, involve the settlement of disputes through mediation. One of the earliest and most widely known examples of grievance mediation would be the United Mine Workers of America in the bituminous coal industry, which laid down the steps of the procedure to resolve work-related grievances between employer and employees using mediation. In this model, the mediator facilitated the discussion among parties as an advisory opinion. If the dispute could still not be settled, the matter was then referred to arbitration. Later, matters involving discipline, discharge, and discrimination were resolved using grievance mediation by The Washington Education Association in cooperation with the Washington State School Directors’ Association through the methods of grievance mediation. As the other grievance mediation programs described, the mediator would challenge both parties, plant some doubts and encourage each side to modify their respective positions to what is most suitable for their opponents. Finally, mediation was used in California Public School Systems and their unions wherein California State Mediation and Conciliation Service, a state agency, would be responsible for the mediation of work contracts.
In the state of Ohio, collective bargaining contracts protect workers from sexual harassment through anti-discrimination clauses. In addition to these clauses, employers implement policies that prohibit sexual harassment and enforce rules and policies which cause grievances at the workplace. In the case of a union, most sexual harassment grievances arise as a result of discipline or discharge of the harasser rather than that of a grievance filed by the victim itself. Generally, the purpose of this collective bargaining agreement is to provide every employee with a “just cause”. The just cause rule further creates a final binding grievance arbitration award if the worker disagrees with the discipline imposed for his actions.
According to Fordham Law Review, mediation works especially well because of its flexibility, and it allows the parties to look into issues sensitively. Since the mediation process is ultimately guided by the factual concerns of the parties, it is seen as a responsive and appropriate method for resolving disputes involving either quid pro quo or hostile environment as is in cases of sexual harassment.
The choice of forum for the sexual harassment case is critical to its outcome. In arbitration, the employer usually has the edge over the victim whereas, the victim tends to be more successful in a trial where she presents her case to a jury. In contrast, mediation is a forum without a predisposition to either party. In a recent study, 77% of the claimants who mediated their disputes were satisfied with the process, compared with only 45% of those whose disputes went into arbitration. This model works extremely well in case of sexual harassment disputes in the work environment. This is so in cases that arise from a misunderstanding or where the unwelcome behaviour results more from the habits and outlook of the harasser than from selfish or malicious motives. For example, for when a male supervisor who constantly tells women that they are “too beautiful to work so hard” may actually believe that these remarks are complementary. He would perhaps stop if told how derogatory such remarks really are, as he would not want his reputation to be tarnished at work. In such a situation, a four-phase model is suggested by the mediator, which allows parties to meet and discuss their own feelings and views in order to educate the parties and restore their professional working relationship. This mechanism also helps the victim to achieve the “I want it to stop” goal.
In the four-phase model, the community boards train volunteer mediators to specifically learn to resolve community disputes with the purpose of maintaining mediating relationships at the end of the mediation process. In the first two phases, the mediators may decide to caucus separately with the respective parties by 1) Asking one party to tell their perspective and 2) Prompting the appropriate response from the other. Once the mediators see that some consensus has been arrived at by the parties, they help the parties acknowledge their new understandings during the third phase of the process that acts as a transition to the last phase where the parties will work out the solution of their issues by reaching a reasonable resolution for the same. It is important to note that a mediator only plays the role of helping the parties to stay focused on their issues so that they can eliminate any possible power plays among parties.
Another model for mediating sexual harassment disputes is the ‘settlement conference model’ that works best if the problem is not reversible but can be contained. This happens in situations where party positions are polarized and a face-to-face resolution is not possible. This model is also shown to be helpful when an investigation reveals harassment has occurred, but the harasser still denies the wrongful conduct and threatens a counter charge. At this juncture, an effective mediator using subtle diplomacy may be able to provide a reality check for the parties and bring them to a resolution short of counter lawsuits. Even in cases of severe sexual harassment, the settlement conference model may still constitute a viable alternative for employers. Transfers or terminations reached via mediation are likely to be more acceptable to the harasser. Further, agreements arrived at through the mediation process can become contractual in nature and therefore binding on the parties (even though they were entered into voluntarily), thus preventing the harasser from bringing a countersuit against the employer for wrongful termination.
Additionally, mediation has several benefits over the litigation process. Litigation does not fulfil the complainants' desire to avoid further trauma. It does not allow him or her to continue their job as suing one’s employer makes it difficult to continue working in the same place. Confidentiality cannot be accepted out of a court trial, and thus an accuser wishes may be made into a public record that will likely cost the reputation of the employers as well as the company. Moreover, litigation fails to meet the needs of the employer whose first consideration is cost. The litigation procedure makes it an expensive affair compared to the process of Mediation. Once the parties have faced each other in court, the professional working relationship may get destroyed, and the employer is likely to lose one or both employees. In addition, those left in the workplace will likely take sides, thus causing productivity and atmosphere problems for the remaining workforce.
The Mediation process allows the victim to air frustrations and develops a remedy that will allow them to feel comfortable at work again if they wish to continue. Such remedies may not be available in litigation. The employer can further provide financial benefits to the victim in addition to compensation. For example, the employer can agree to reinstate the complainant or give a guarantee and recommendation in attaining a better job after resignation from the accused company. Furthermore, mediation can also meet the accused’s objective. The accused will get an opportunity to clarify his or her side of the story in case of a false accusation. The confidentiality of the proceedings will allow them to reach a consensus without public disparagement so that exoneration without public disclosure of the charges becomes possible.
In India, sexual harassment is recognized as a form of gender discrimination that violates women’s fundamental rights under Article 14,15 and 21 of the constitution. The Prevention of Sexual Harassment Act ("POSH Act") was enacted by the Ministry of Women and Child Development in 2013 to address the issue of workplace sexual harassment. That year also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 which has criminalized offences such as sexual harassment, stalking and voyeurism. It is imperative to note that under the penal code in India, sexual harassment is seen as a women-centric complaint in contrast to how sexual harassment is seen in other countries in the west.
Furthermore, most government companies are expected to follow the rules laid down by the Vishakha Guidelines against sexual harassment at the workplace. Under the POSH Act, an employer is legally required to comply with certain statutory requirements, one such requirement being setting up of an Internal Complaints Committee ("ICC") to receive complaints on sexual harassment at the workplace from an aggrieved woman, as well as to enquire into the making of recommendations to the employer regarding action to be taken. This ad hoc body is the body that pre-looks the harassment case before sending it further for criminal proceedings. Before initiating action on a complaint, the IC, on the request of the aggrieved woman, can make recommendations to settle the matter through conciliation by bringing about an amicable settlement. Conciliation is suggested as it is an informal method of resolving complaints before it escalates into a formal enquiry. Thus, once a complaint of sexual harassment has been lodged, the aggrieved woman can request the IC to resolve the matter through conciliation between the concerned party before the commencement of the enquiry proceedings take place.
Post settlement, the IC or the Local Complaints Committee ("LCC") shall record the settlement arrived at and thereafter provide copies of the consensus to the aggrieved woman as well as the respondent. Once a settlement has been arrived at, the IC/LCC shall proceed with an enquiry. The POSH Act also provides interim relief. In case the complainant wants the harasser to be punished and wants compensation, the complainant can request the conciliator to suggest them to an appeal court or a tribunal court. The only way this is possible in India is because there are provisions through conciliation which requires a legal statute in contrast to a mediation that is entirely dependent on the parties as well as the mediator’s discretion. The mediation also gives the accused a fair trial that could be biased towards the complainant which is detrimental in a country like India, where women are already facing a plethora of issues when it comes to sexual offences.