There is no question that the #MeToo movement has encouraged women across the board to come forward with complaints of sexual harassment in the workplace. As mediators, we have witnessed the increase in these cases over the past six months, triggered, no doubt, by seeing women publicly report allegations of sexual harassment against high-profile men; something that rarely happened in the past. The #MeToo movement has also affected the way in which these cases are mediated.

The traditional role of a mediator in a sexual harassment case was to be engaged weeks, if not months, after the employer had received a demand letter from counsel and after the employer had an opportunity to conduct a thorough investigation. The issue of proportionality was part of the process and the mediator discussed with the parties liability and the probability of jury awards based on the particular facts of the case and prior jury awards, including those that had been reduced on appeal. There was no question about whether the settlement would be confidential because confidentiality routinely was the price of settlement. In many cases, employers succeeded in negotiating liquidated damages provisions to ensure that the facts of the case, as well as the settlement amount, remained confidential. The complainant had little or no ability to demand that the harasser be terminated or even disciplined. Moreover, even if the harasser had been disciplined, that information was rarely shared with the complainant.

Originally published in Law360 on May 24, 2018.