The recent mass mobilization against sexual abuse embodied by the #MeToo movement has helped erode barriers to ending sexual harassment. But the movement has also highlighted how traditional approaches to law and legal enforcement too often preserve a system of structural social hierarchies. By publicly and pervasively challenging the status quo, the #MeToo movement inspires us to reassess the role that “alternative” modes of dispute resolution can and should play in making legal recourse for sexual harassment a reality.
Mediation and arbitration have been staple alternative modes of dispute resolution, particularly in educational and employment settings, where sexual harassment has been raised for years. Mediation is a process whereby people in conflict have the opportunity to talk together about their concerns with the assistance of a mediator, who is there primarily to facilitate their conversation. The mediator has no decision-making authority – all decisions rest with the people in dispute (and their attorneys). In mediation, unlike in traditional litigation, participants control their destiny and can pursue whatever outcome they deem to be most beneficial to them. In most cases, mediation is also “voluntary,” which means that the mediation can be terminated by any of the people involved at any point. The ultimate hope in mediation is that the parties develop a greater understanding of each other and can develop a mutually acceptable way to resolve their dispute. The parties can be creative in deciding what type of agreement they may wish to make and, typically, it will be enforceable in the same manner as any other contract.
Mediation works best when the people who are involved in a conflict can sit together to talk about what happened and thereby develop a clearer understanding of how each sees the situation. Because some victims of harassment may be uncomfortable about or unwilling to sit down with their abuser, mediation may not be effective. On the other hand, if the abuser genuinely feels badly about what has taken place and wishes to offer an apology or otherwise make amends, mediation can achieve what arbitration and traditional litigation cannot, namely, the possibility for reconciliation. There also are many styles of mediation, and it is possible in some instances for mediation to be conducted in a manner which is more similar to a settlement conference, where the people involved do not have to be in the same room to resolve the conflict.
Arbitration, like mediation, is a voluntary process, at least in theory. Parties agree to choose their own “judge” – the arbitrator – who typically relies on less formalized processes of discovery and presentation of evidence to make a decision. Arbitration, however, differs from mediation in that it is a contested process. The arbitrator does not facilitate a conversation between the parties but instead hears the parties’ arguments and declares a winner and a loser. It is also a binding process. Once the parties agree to submit their dispute to arbitration, parties may no longer pursue their dispute in another forum and the arbitrator’s award effectively ends the dispute.
Arbitration can work well when parties prefer an expeditious and cost-effective resolution to their dispute, but they cannot come to a negotiated settlement of it. Arbitration can also work well to help parties focus on the critical dimensions of their dispute rather than fighting collateral battles about discovery or formalized rules of evidence or procedure.
Both mediation and arbitration, however, while offering potential for swift, creative and efficient resolutions to disputes, share a common potential problem when it comes to sexual harassment claims – both processes are typically confidential. In nearly all jurisdictions, mediation communications are protected from being used in court proceedings in the event that mediation ends without an agreement. In addition, pre-mediation agreements may include confidentiality provisions which can essentially prohibit everyone involved in the mediation from disclosing anything that was discussed in the mediation as well as the terms of any agreements that may be reached in the mediation.
Arbitration, similarly, is almost always a confidential process, and it is quite common for arbitration agreements to contain confidentiality provisions that prohibit the parties from discussing the process or revealing any information about the arbitrator’s decision.
In theory, confidentiality could be a benefit to both victims and harassers. For the accused, there is clear reputational benefit for not having everything known (which would be the case in a court proceeding), and for victims of harassment, they too might prefer to protect their privacy. Additionally, the promise of confidentiality may well be a significant inducement for abusers to settle claims. Without that offer of secrecy, it might well be the case that victims would be unable to settle their disputes and would, instead, have to litigate them to completion, eating up time and money that the victims might not have.
A growing body of evidence, however, suggests that confidentiality often functions to isolate victims, shield serial predators from accountability, and allow harassment to persist in organizations. Indeed, a significant part of the success of the #MeToo movement has stemmed from increased transparency regarding the incidence of harassment.
Efforts to redress the power imbalances exacerbated by secrecy rules are already under way. Several states, including New York, Pennsylvania and California, have already introduced or are in the process of introducing bills that would curtail the use of non-disclosure agreements in sexual harassment settlements. More work and thought needs to be done, however, to reimagine ways of balancing the urgent need for transparency related to sexual harassment with a proper role for confidentiality in mediation and arbitration.