A Case Study in Sexual Harassment Mediation in the #MeToo Era

A Case Study in Sexual Harassment Mediation in the

#MeToo Era

By Tanya Tate
BAY Mediation & Arbitration Services

Sexual harassment awareness is undoubtedly increasing in the #MeToo era.  As a result, more and more Plaintiffs are coming forward with complaints about inappropriate conduct in the workplace.  With the extensive media coverage, and the many sexual harassment scandals coming to light over the last two years, from Harvey Weinstein to Matt Lauer, women are feeling empowered and are more likely to feel safe complaining about sexual harassment at work.  Rachel Simmons, a leading expert on women’s empowerment, explained that, “the women’s movement has been swept into the mainstream and become more diverse, and social media has become increasingly effective at mobilizing younger generations of women and girls…Shining a light on harassment has forged a community where women feel authorized to raise their voices in ways they never have before.”[1]  As a result, more claims are being made and more lawsuits filed.  Mediation is an extremely effective tool to use to resolve these claims, both pre and post litigation.  However, the manner that attorneys conduct themselves at mediation can and does have a huge impact on the outcome of the mediation.  Consider the following two case studies and the reasons for the different outcomes at mediation.

Case Study One:

In Case One, a female employee claimed to have been sexually harassed by a co-manager at her workplace.  The Plaintiff employee complained (on more than one occasion) pursuant to the Company’s Anti-Discrimination Policy.  However, her complaints were largely ignored.  The accused became aware of the complaints made against him and became angry with the Plaintiff.  Several days after the Plaintiff voiced her complaints (and with no action by the employer), she was again confronted by the accused.  He screamed obscenities at her and then physically forced her against a wall in the office.  The female Plaintiff yelled back at the accused and pushed the accused away from her.  Despite this altercation, which was witnessed by a regional manager, the employer still scheduled the two to work together the following day.  Frustrated and scared, the Plaintiff sought (and obtained) a temporary restraining order.  The accused was finally terminated.   But, the Plaintiff was written up for “escalating” the situation when she yelled back at the accused when he had her pinned against the wall.  Plaintiff ultimately terminated her employment with her employer due to the harassing environment that persisted.

Case Study Two:

In a second case, the Plaintiff claimed to have been sexually harassed as well.  Plaintiff claimed that her boss repeatedly made inappropriate sexual comments in her presence.  While the comments were not directed at her, she did hear them.  In addition, the Plaintiff claimed her boss had touched her on three separate occasions; twice on the buttocks and once on the upper thigh.  The Plaintiff had witnesses for both touchings and came to the mediation with sworn statements supporting her account.  She complained to Human Resources, but no action was taken.  With no action by the employer, this conduct continued and Plaintiff ultimately resigned, claiming that she could no longer work in such a hostile work environment.

Case Two settled and Case One did not, although legally the employer in both cases had significant legal exposure.  What was the difference?  Primarily, it was the behavior of the attorneys.  The way they handled certain situations that arose during the mediation greatly impacted the settlement potential and likelihood of settlement at mediation.   Counsel for the Plaintiff in Case Two (the case that settled) did three things that allowed their client to soften to the idea of settlement and that allowed me as the mediator, to focus the issues and streamline the mediation.

  1. “Line in the Sand”.

The attorneys in Case Two zealously advocated for their client, while at the same time being respectful and acting professionally towards opposing counsel. However, in Case One the behavior of Plaintiff’s counsel was much different.  There, during the joint caucus (after stating that he would not be making a substantive opening), Plaintiff’s counsel, with all parties present, nevertheless, made an opening statement.  During the course of the opening, he drew a line in the sand and stated unequivocally that the case would not settle (under any circumstances), for less than a specific damages amount.  Counsel for Plaintiff also acted with great hostility towards defense counsel and the Defendant representative during the joint meeting.  This created a multitude of issues that permeated the mediation.  These issues did not exist in Case Two, the case that settled.  The correlation between the likelihood of settlement and the conduct of the attorneys is apparent.

First, by drawing the proverbial line in the sand, Plaintiff’s counsel in Case One backed himself into a corner.  The “bottom line” number verbalized by Plaintiff’s counsel in Case One was excessive in light of both verdicts and published settlements in very factually similar cases filed and adjudicated in the same District Court.  But, as they say, you cannot un-ring the bell.  The Plaintiff not only heard her attorney articulate the very high number, but also heard him emphatically tell everyone in the joint caucus that this number was as low as Plaintiff would go and to settle for this amount would be a “gift” to the Defendant.  Of course, there is always a certain amount of theatrics and posturing in every mediation.  The attorneys and mediator know and expect that.  But a layperson, particularly an emotionally vulnerable Plaintiff, oftentimes cannot make this distinction.  This leads to anchoring bias by the Plaintiff and it is something that is hard for the mediator, and frequently Plaintiff’s own attorney, to break through.

Anchoring bias can make a case especially difficult to resolve at mediation.  Anchoring bias occurs when people commonly rely on the initial value given to them and have a hard time budging.  An actual example of anchoring bias is found when examining a study where two groups of judges were given the same set of facts about damages and asked to determine the amount of money to be awarded. One group was told that Plaintiff’s counsel “was intent upon collecting a significant monetary payment”, while the other was told that Plaintiff’s counsel demanded $10 million”. The first group awarded a mean amount of $808,000 (a median of $700,000) while the second group awarded a mean amount of $2.2 million (a median of $1 million). In another study using the same information, the first group of judges was also told that defendant had moved for dismissal, arguing that the case did not meet the $75,000 jurisdictional requirement; those judges awarded an average of $350,000 less than judges without that information.[2]

Like judges and juries, clients can also fall victim to anchoring bias, particularly after repeatedly hearing from their attorney “what the case worth”. It is therefore imperative to gather as much objective data as possible relative to what the employee was earning, realistically anticipated promotions, bonuses, cost of living increases, and retirement age and realistically (even if aggressively) value the case.  In Case One, by verbalizing this “bottom line” number at the outset of the mediation (and not effectively educating his client that he was posturing – if in fact he was), the Plaintiff’s attorney created a biased Plaintiff.  As a result, the Plaintiff in Case One was extremely reluctant to ever even remotely approach her attorney’s articulated “bottom line” number in the negotiations; a number that was undoubtedly artificially high.

  1. Effectively Prioritization of Claims.

All Plaintiff’s attorneys are careful to include all viable claims in their filing; if for no other reason than to avoid them from arguably being barred if they do not assert them in the initial complaint.  Likewise, defense attorneys often include every conceivable defense in their answer for the same reason.  But all attorneys should recognize that not all claims and defenses are created equally.  There is usually at least one “throw away claim” or one questionable defense.  The Plaintiff’s attorneys in Case Two helped maximize the chances of their case settling by prioritizing their claims.  Together with myself, we worked through each claim and assessed their respective strengths and ranked them from strongest to weakest.  This approach is helpful for many reasons.  One, it allows the attorney to focus with the mediator on the claims likely to be the most persuasive and hardest for the Defendant to refute.  Secondly, it allows the attorney to concede something in the mediation (the weak and likely unsuccessful claims) without really conceding anything.  This prioritization of claims (and defenses for defense counsel), is a strategy that helps streamline the mediation and helps counsel gain credibility with the mediator.  It also helps to make the most efficient use of time at mediation.  A good exercise to engage in before each mediation is to make a list of your three strongest arguments and, on the flip side, a list of your three biggest weaknesses.    As a result, the mediation will be focused and you will have engaged in an honest assessment of your case which is critical to settlement.

  1. Substantive Opening Statement.

Over the last few years the trend I have observed, especially in employment and business dispute mediations (and even, to lesser extent, in personal injury and premises liability mediations), is the decision to forego opening statements.  The prevailing school of thought seems to be that they often do more harm than good, agitating the parties and widening the divide between Plaintiff and before the mediation even gets started.  Neither attorney in Case Two made an opening statement.  However, the attorney in Case One elected to make an impromptu opening statement.  His arguably arrogant attitude and open hostility proved to be very inflammatory.  While both Plaintiff and defense counsel had both agreed in pre-mediation conference calls not to make openings, Plaintiff unexpectedly did so.  This in turned forced the Defendant to feel the need to respond (particularly since the Plaintiff’s opening turned into an open attack on Defendant).  The Plaintiff then also became angry.  Unnecessarily inserting this type of emotion into a mediation necessarily makes the case more difficult to settle.  Of course, there are some cases that lend themselves to openings, and perhaps require them.  However, if you elect to do an opening, it is best to keep it focused, professional and refrain from personal attacks.  Failure to do so can create an insurmountable obstacle to settlement.

At the end of the day, actions and words do matter.  Attorneys are going to face more and more mediations, especially in the employment law arena as the #MeToo movement grows.  So, it is critical that every attorney have a well-defined strategy as they approach the mediation.  Preparation and professionalism increase your chances of success at mediation exponentially.

[1] Wallace, Kelly, and Rachel Simmons. “After #MeToo, More Women Feeling Empowered.” CNN, Cable News Network, 27 Dec.

2017, www.cnn.com/2017/12/27/health/sexual-harassment-women-empowerment/index.html.

[2] Masters at 3; Guthrie, Chris; Rachlinski, Jeffrey J.; and Wistrich, Andrew J., “Blinking on the Bench: How Judges Decide Cases”

(2007). Cornell Law Faculty Publications. Paper 917; Wistrich, Andrew J.; Guthrie, Chris; and Rachlinski, Jeffrey J., “Can

Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding” (2005). Cornell Law Faculty

          Publications. Paper 20.

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