Mediating a Sexual Harassment Claim

Statistically, the overwhelming majority of sexual harassment cases are resolved prior to trial by “alternate dispute resolution” in the form of mediation or arbitration.  These proceedings (mediation in particular) are more informal than a courtroom trial, but you still need a zealous and experienced advocate on your side.

Fairfield County is home to many Fortune 1000 companies.  Executives from Greenwich, Stamford, New Canaan, Norwalk, Westport, and Fairfield come to Maya Murphy, P.C. for legal counsel and trial advocacy when they have been victims of sexual harassment.  Sometimes these cases are adjudicated administratively before the Connecticut Commission on Human Rights and Opportunities (“CHRO”) and tried before the United States District Court for the District of Connecticut.  More often, however, they gain closure through non-binding mediation before a disinterested third party—frequently a retired federal or state judge.

Maya Murphy recently represented a senior female executive of a large company who had been sexually harassed by her direct report, i.e., her “boss.”  A preliminary investigation indicated that the claimant had a solid cause of action and we immediately filed a Complaint with CHRO as a predicate to suing in federal court, if the need arose.  As is often the case, however, counsel for the employer suggested mediation.  Because mediation can produce an acceptable and quicker result if it is handled properly, our client agreed.  The parties proceeded to mediate before a mutually selected retired U.S. District Judge and the case settled for a representative six-figure sum.

The key to successful mediation of a sexual harassment claim is always to be prepared to take your case to trial in federal court.  Stated differently, the key to successful mediation is always to be prepared to walk away if the process is not leading toward an acceptable settlement.  This takes courage on the part of the claimant and discipline on the part of her attorney.  If, however, the attorney has approached the mediation with all the seriousness and intensity of a jury trial, more often than not, a settlement can be achieved on terms approaching a best-case, in-court scenario.

Virtually all mediators require preliminary submission of a confidential “mediation statement” outlining the factual and legal parameters of the underlying claim.  For the seasoned trial lawyer, the mediation statement is both his Stradivarius violin and his Louisville Slugger baseball bat.  A well-crafted mediation statement can both tug at the mediator’s heart strings and pound incessantly at egregious facts and undisputed points of law.  Simply stated, mediation success depends in large measure on the quality of the mediation statement and its ability to persuade the mediator in the first instance that the claimant’s cause is well-founded and the law requires fair and just compensation.  Lawyers who submit “pro-forma” mediation statements do so at their client’s risk.  Such statements should be as comprehensive and compelling as any trial memorandum or appellate brief submitted to a court of law.

Another key to mediation success is “reasonableness.”  In sexual harassment cases, emotions run high and client expectations have to be properly managed.  An experienced litigator can evaluate a case and establish for the client a “realm of reason” within which the case should be able to settle.  This is often a function of experience and ensures that any agreed upon settlement reflects the true value of the underlying case without “leaving any money on the table” as negotiations unfold.  Here, an experienced mediator can be of assistance in managing the expectations of a client and rounding down an unrealistic demand by counsel.  At the end of the day, however, attorney and client have to be prepared to walk away from the mediation if the mediator’s “shuttle diplomacy” is not moving the parties toward a reasonable and rational compromise.  Litigation always remains as a viable alternative and the lawyer who is prepared for mediation will be prepared for trial, as well.

The employment lawyers at Maya Murphy who handle sexual harassment cases throughout Connecticut are equally adept at mediating or trying such cases.  We approach each case with the intention and attention that it deserves.

 

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