Sexual Harassment and Mediation by Alison Love, Director, Resolution at Work

In the aftermath of the Harvey Weinstein revelations and #me too campaign, I  have attended a number of events where sexual harassment has been discussed. I have heard a number of HR practitioners express the view that where an employee raises allegations of sexual harassment there is an obligation to investigate this formally and that mediation is not an option in such cases.

This has got me thinking about why this view is held and how far this might apply. The reason seem to stems from the following:-

• A duty to act? It is correct that there is a duty on employers to take action to prevent sexual discrimination and harassment and to create an environment which is free from this. Part of this duty is to have appropriate processes in place. However, this in itself does not mean that a formal investigation must be inevitable as there is no reason in principle why mediation might not be part of the solution towards creating an environment free of harassment and an informal process should be stated as a first stage in any event in appropriate circumstances.
• Taking it seriously? Concerns relate to the principle of confidentiality in mediation and that this may be seen as sweeping such allegations under the carpet. I am not sure that this is a valid argument; mediation is not a soft option. It is difficult and often highly emotional; it challenges the behaviours and makes clear the impact and what is and is not acceptable behaviour; that is not sweeping anything under the carpet. Also, any disciplinary action taken should remain confidential in any event so outcomes are often unknown following a formal process unless a dismissal follows. Alternatively, it is not uncommon for there to be confidential settlement agreements concluded particularly where allegations concern senior employees. The Harvey Weinstein situation demonstrates that this practice has a far more serious consequence in preventing concerns being dealt with effectively.
• A need to discipline? Most formal disciplinary procedures make some sort of statement about the aims and objectives of the procedure. Usually this is stated to be around improving individual conduct, behaviour or performance. In my experience it is rare for employees to accept that they have been in the wrong in situations of this nature following a formal process even where the investigation has made findings of fact to support this. They will defend the findings to the hilt and rarely accept that they were in the wrong.

As a passionate mediator, I maintain that in the vast majority of cases mediation should be considered. It is a far better alternative to formal processes which are often triggered as an almost automatic response. The outcome of a formal process often satisfies no one; relationships are damaged, positions become entrenched and there is rarely any real understanding or appreciation of opposing points of view. Mediation allows an opportunity for real learning; the process itself is designed to allow individuals to understand the impact of their conduct and behaviour on others and to see things from a different perspective. If the allegations that have been raised do not lead to dismissal, then the task of enabling individuals to work together following an investigation is much more difficult. Mediation can of course help here too, where relationships and well-being will have been adversely impacted.

With that in mind I thought that it might be helpful to put together some guidance on things to consider when deciding whether or not mediation should be considered and proposed at an early stage and how this should be raised.

• If the allegation is so serious that if proven it is likely to lead to dismissal (or indeed a criminal offence) then it is highly unlikely that mediation will be suitable. In order to clarify whether this is the case it may be possible to carry out some initial fact finding or informal investigation to determine what evidence there is to support the allegations prior to making a decision on the best course of action.
• In practice (and in the real world away from Hollywood), the vast majority of cases will not lead to dismissal for a first offence, particularly given the evidential difficulties that often arise. Where this is possible, discussion should be had with the person raising the complaint giving full information about how formal processes work, burdens of proof and evidence and potential outcome. Similarly, mediation or other alternative approaches should be explained fully so that the employee can make an informed choice.
• Employees should be asked what outcome they are seeking. If it is to get the other person sacked then some reality testing follows about what happens if this is not the outcome and mediation should be explained and discussed as an option. If the employee is saying that they want the behaviour to stop, that they want to continue to work in the department etc. then mediation is, again, an obvious discussion point.
• Consider what support might be available to the employee concerned to either raise the issue themselves (if they have not already done so) or enter into mediation. Confidential conflict coaching and pre-mediation meetings with a qualified mediator can be hugely beneficial here in preparing employees for mediation and fully exploring the options.
• If an employee raising complaints is willing to consider mediation any formal processes can be stayed pending this. Discussions should then be had with the alleged harasser and again full information given about the options and benefits of mediation. It is far better for the allegations and responses to be heard directly from the persons concerned, so that each can understand the impact and nuances. It is impossible to get this across in a grievance letter or witness statements and any allegations will appear to be far worse once committed to writing.
• Care needs to be taken to raise the concerns sensitively; it is dangerous to underestimate the impact of such allegations being made against individuals who often have no understanding at all of the impact of such behaviour on others and no ill intent. General guidance here is to use clear, direct and neutral language and allow time and space for the information to sink in.
• If the person concerned is in a senior or management role then, in my view it should be made clear that they have a management obligation to assist in resolving matters and that entering into mediation is part of that obligation. I believe that employers can be far more robust in encouraging or persuading individuals to enter into mediation than they often are.
• If there are allegations or concerns raised regarding a culture of harassment and inappropriate behaviour that has been allowed to go unchecked then mediation is unlikely to be appropriate. Other action will need to be taken such as a more wide ranging investigation of underlying causes for concerns (A Neutral Assessment process may be of real value in such a situation. Click here for further information about Neutral Assessments and the types of situation that might benefit from such a process). There will also be a need for training, a cultural change programme and clarity over the dividing lines of appropriate and inappropriate behaviour.

There are obviously no hard and fast rules to follow. Each situation needs careful consideration and I hope that this guidance helps to encourage real thought being given to the most appropriate course of action.  I would be interested to hear others thoughts on this.

If you have an employee who has raised allegations or concerns about another employee’s behaviour, or if you have concerns regarding a possible culture of harassment / inappropriate behaviour we are happy to discuss (without obligation) whether mediation, conflict coaching or Neutral Assessment may be appropriate. You can call us on 01446 760933 (Wales) / 0117 373 9192 (England) or email us at [email protected].

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