A recent mediation of mine involved an administrative-level plaintiff in a professional services firm who, according to her claim, experienced unwanted sexual advances from three of the partners for several years. There was electronic evidence of the harassment, descriptions of  on-going sexual relationships and details of sexual encounters in the office, in parking lots, in sheds, fields, homes and hotels. She was an extremely vulnerable plaintiff who was a survivor of childhood sexual abuse that, according to her lawyer and her therapist, left her without an ability to withstand the sexual advances of males in positions of authority. She had medical records supporting her claim of emotional harm and the exacerbation of her physical conditions due to the stress of the harassment. She came to the mediation in a fragile, fearful state-- alternating between wanting closure and wanting to harm the business and the partners the way she felt injured by them.

Her husband, who attended the mediation, was in a state of rage. He was driven by marital jealously, a need to protect and defend his wife and a financial desperation due in part to the loss of her income and her medical bills. Any sense that the employer was trying to escape liability would have derailed the negotiation.  

Legally, it was one of those uncommon cases where liability for the employer appeared strong and clear. The difficulty facing defense counsel was achieving a coordinated front to prepare for a successful mediation. The business, which was represented by two defense counsel, would likely go under if the suit became public. The individually-named partners were separately represented and endured threats of divorce and counterclaims as the mediation date approached. There were varying levels of responsibility and denial among the partners.

One astute decision of counsel for the business was to attend the mediation with only the partners with minimal involvement in the harassment claims. The purpose was to keep the mediation focused on resolving with the plaintiff. Otherwise the conflict among the partners over who was liable for the harassment would have overtaken the process. Instead, before the mediation, the partners determined a range of authority to allow the business to settle the matter at mediation. This decision allowed the plaintiff to be spared the delay in negotiations during their internal debate over who was responsible and avoided her feeling re-victimized by the negotiation.

Second, the employer's counsel approached the mediation without a need to assert their possible defenses that would be available in litigation. This was an insightful decision and the perfect approach to this mediation. As in many harassment claims, there was a possible defense that the sexual advances were welcomed by the plaintiff. What the plaintiff viewed as unwanted sexual advances, the partners viewed as consensual sex between two adults. However, given the supervisor/subordinate relationship, the number of "harassers", the extended period of the harassment, the documentary evidence, the chance of the welcomeness defense succeeding was slim.

The decision to avoid discussion of possible defenses -- more common in clear liability cases -- recognized the strength of the plaintiff's case. This was an important message to send early on for this plaintiff. Additionally, to allow for a productive negotiation, the defense counsel remained focused on resolving with the plaintiff rather than blaming her. As a result the emotionally fragile plaintiff and her raging husband were able to stay in a positive and productive decision-making mode.

At the end of the mediation, the case resolved. The settlement allowed the employer/business to stay in business and avoid the claim from ever being filed publicly. The plaintiff and her husband were able to make decisions and negotiate from a place of safety and objectivity as opposed to danger, fear and sense of being re-victimized by the process.