“He Said, She Said”: The Challenges of Sexual Assault and Sexual Harassment Claims

By Kelly K. James


California recently passed a bill, AB 933, that expands the definition of “privileged speech” to include communications about information concerning sexual harassment, sexual assault, or discrimination. The new law defines “privileged communications” as including any communication that is made “without malice, regarding an incident of sexual assault, harassment, or discrimination” if the person making the statement had a “reasonable basis” to file a complaint for discrimination, sexual assault, or harassment, regardless of whether a complaint is ever filed. The law is intended to help encourage legitimate complaints of sexual assault and harassment by reducing the risk of baseless defamation claims.


The factual issues concerning claims of sexual harassment and sexual assault are often complex, and emotions can run high on both the plaintiff’s and defendant’s side. These are compelling reasons why these cases are often well-suited for alternative dispute resolution (ADR) like mediation. I spoke with several experienced labor and employment mediators about the inherent challenges attorneys face when representing plaintiffs and defendants in these types of cases.


Issues Around Sexual Harassment and Sexual Assault Cases

First, plaintiffs’ attorneys must be aware of the emotions surrounding these cases, says Steve Dunn, an employment mediator based in Charlotte, North Carolina. “Plaintiffs are often retraumatized by having to tell their story again and again, such as in a deposition or mediation,” says Steve. “Attorneys have to balance their duty to obtain the most favorable legal outcome against their clients’ need for healing.


“Defendants are often willing to pay a premium for confidentiality and non-disparagement provisions which the plaintiff and others may perceive as sweeping their misconduct under the rug,” he adds. “While there is a trend against the enforcement against these provisions, it is still a challenge for plaintiffs’ attorneys to balance their clients’ financial interest against our collective interest in transparency.”


Another potential issue for the plaintiff is proving what happened. “The time lag between the incident and the time of reporting is typically a problem; the longer the time lag, the more difficult it is for the plaintiff to prove the case,” says Kim Kirn, a labor and employment attorney, mediator, and arbitrator based in St. Louis.


“The evidence of sexual harassment is often ‘he said, she said’ which often means there are disputed facts which must be decided by a jury,” agrees Steve. “Most defendants contend the allegations against them are false, or at least highly exaggerated. When your client is defensive and indignant, it can be hard to make a rational assessment of the costs and risks of litigation.”


“Proof of the allegations is always a challenging issue but perhaps more so when personal, often uncomfortable, communications and events are at issue,” says Donna V. Smith, an employment mediator based in Tampa, Florida. “They are often not captured on video surveillance, text, email, or other trackable sources. They are also subject to ‘interpretation’ if the context and full thread/communication is not captured and available. Perspective and interpretation play a key role in evaluating the ‘evidence.’”


ADR: An Appealing Option  

Choosing mediation can help both plaintiffs and defendants address their issues in a private, supportive environment. “Many times, the plaintiffs are deeply embarrassed about what has happened to them. They feel guilty; they hesitate to report the sexual misconduct. As time passes the cases become more difficult for both plaintiff and defendant,” says Kim.


“ADR protects the party’s confidentiality, but it allows the plaintiffs to feel as though the problems are being addressed without the resulting publicity from a lawsuit. Another challenge is the nature of the sexual misconduct itself,” says Kim. “It is uncomfortable for everyone to talk about and, of course, in mediation we may dive deeply into the misconduct. This is why I believe as a female mediator, I bring a special sensitivity and calmness to the situation.”


While a mediator need not be male to be effective, choosing the right person can facilitate the process. “Any cases dealing with the sensitive subject area surrounding sexual harassment and sexual assault need a neutral or arbitrator with a compassionate understanding of the inherent power imbalance in those types of matters,” says Greg Parent, an Atlanta-based mediator. “Helping decision-makers on both sides appreciate the unique circumstances behind these cases is imperative for gaining traction to have any substantive negotiations.”


Attorneys must keep in mind that both plaintiff and defendant may be telling “less than the full story.” The confidential nature of mediation can let the parties, and their attorneys, work through issues — and determine what “really” happened — without fear of public disclosure.


“Mediation allows a neutral to guide the parties through an in-depth exploration of those issues in a ‘safe’ environment where we can help facilitate changes and reparations for part harms arising out of indefensible behavior. It may also help uncover or reveal some facts which had all the hallmarks of sexual harassment, yet when brought to the light of a collaborative investigative process like a comprehensive mediation, exposed evidence suggesting a lesser imposition between two or more parties,” says Greg. “In other words, the process can help strengthen and validate a victim’s position or help exonerate and lessen a defendant’s actual burden.”


In the final analysis, the difficulty in proving what “really” happened, the emotions involved, and the unique circumstances of each case make mediation an appealing option for cases involving sexual assault or sexual harassment. “In emotionally charged cases, winning rarely feels like winning. The financial outcome for winning plaintiffs is rarely what they think they deserve, and only comes at the end of a long and miserable journey,” says Steve.


“For defendants, there is no pot of gold at the end of the rainbow when they win the case. They just feel like they are back where they should have been all along,” he adds. “The greatest benefit of settling at mediation is also the hardest to perceive — it’s the value of moving on from the dispute.”




Miles Mediation & Arbitration is shaping the alternative dispute resolution (ADR) industry with our comprehensive professional services model that combines the expertise of our highly skilled, diverse panel of neutrals with an unparalleled level of client support to guide and empower parties to fair, timely, and cost-effective resolution regardless of case size, specialization, or complexity. For more information, please call 888-305-3553 or email support@milesadr.com.