Mediating Sexual Harassment: Aligning The Practice With Feminist Theory

THEME: Mediation and Women’s Rights

This article was authored by Mugdha Mohapatra and Amlan Mishra from NLSIU Bangalore and NLU Jodhpur.

Abstract

Mediation in India has been seen as appropriate for the resolution of various types of disputes and claims without resorting to formal adjudication. However, no attempts have been made to apply this process to sexual harassment claims at the workplace. In this essay, it has been argued that providing parties the option to mediate prior to a formal inquiry is beneficial and desirable. This argument has been formulated by first answering the ethical question over mediation from the perspective of feminist legal methods and second, by outlining the flaws of the Prevention of Sexual Harassment at the Workplace Act 2013 that can be remedied by supplementing it with an ‘option for mediation’. Concerns over power imbalance and other issues that may arise in the context of mediation have been addressed by providing suitable recommendations based on existing literature and practical experience of mediators and providing an analysis of some innovative solutions that have been proposed in the adjudication of sexual harassment claims.

The age of #MeToo has raised serious concerns about the ability of institutions to respond to allegations of sexual harassment. Scholars argue that the movement is symptomatic of a culture of silence that our workspaces and sexual harassment laws and institutions perpetuate. Mediation in this context is often perceived as a less adversarial and more navigable alternative. In this paper, we seek to interrogate this claim from the perspective of feminist legal methods and restorative justice.

The attractiveness of feminist legal methods lies in its ability to question the ‘status-quo’ by questioning the structures and languages that the institutions employ to limit access of women. While seemingly neutral and fair, these institutions may still remain unfair when juxtaposed with the situation and experience of women.

Using this method, ethical dilemmas of using mediation as an answer to sexual harassment are explored. These dilemmas centrearound privatization of justice and perpetuation of power imbalances in the mediation process. Mediation, we argue is ethically justified despite these concerns.[I]However, solutions to women problems need to be seen in the context of the present system under the Prevention of Sexual Harassment Act, 2013(POSH Act) available to women in workplaces. Upon evaluation of the existing redressal system using feminist methods, we conclude that mechanism is woefully inadequate. Mediation, if done properly, promises to address some of these identified failures of this system. [II] Next, we offer recommendations which are aimed at offsetting power imbalances in the mediation process and addressing ethical concerns by critics. [III]

Mediation: A Feminist Legal Methods Perspective

In this section, the suitability and desirability of the mediation process in sexual harassment cases at the workplace has been examined. For the purposes of this essay, mediation has been conceptualized as an option voluntarily chosen by the victim, in addition to other forms of grievance redressal. It is argued that the process of mediation when examined from the perspective of feminist legal method as well as the perspective of restorative justice is a useful option in the adjudication process of claims on sexual harassment.

Feminist legal methods as a theoretical framework seek to uncover and reveal features of a legal issue that traditional modes of practicing the law ignore.[1] The three facets of this process are: asking the woman question, feminist practical reasoning and consciousness raising. Mediation is based upon the foundational principles of flexibility and voluntariness making it a suitable forum for grievance redressal when analyzed from this perspective.

Asking the woman question requires an examination into the gendered implications of a certain measure and recognizing the lived experiences of women which are not recognized by the law.[2] The use of the mediation process is consonant with the realities of the lived experience of women subject to such harassment. The concerns that any victim who chooses to report sexual harassment has are, the career and cost implications of reporting the offending behavior, whether or not their complaint will be believed, confidentiality, rehabilitation or discontinuation of the offending behavior and punishment of the offender.[3] Mediation as a first step provides the victim an opportunity to voluntarily seek redressal without the fear of antagonizing the employer with legal action. Due to the absence of strict evidentiary and procedural requirements the victim is not required to prove their claim through expensive court processes.[4] Not allowing for mediation and forcing the victim into formal adjudication deprives them of these benefits of the mediation process.

Feminist practical reasoning is grounded in the assumption that individualized fact finding and analysis is often superior to the application of bright line rules.[5] There is a need for the law to accommodate and recognize the lack of universality and the presence of dilemmas and contradictions as opposed to fixed legal principles that can always be applied to achieve appropriate ends.[6]

The option of mediation in sexual harassment disputes truly captures this. By providing a safe space to the victim to voice their version of events and including the perspective of the accused, it is the only forum that recognizes the complexity of a case of sexual harassment as opposed to an adjudication of guilt which requires the application of legal principles and where only a predetermined set of solutions are possible. In practice, mediation also provides an opportunity for the victim to ask the accused to stop the offending behavior or to propose any other solution she feels is necessary to undo the effects of the offending behavior.[7]

Consciousness raising is an attempt to explore common experiences, recognizing usual patterns of behavior to achieve collective empowerment. This feminist method operates on an individual as well as an institutional level.[8] In mediation, the opportunity for the victim to express their lived experience without the pressure of proving it empowers them and validates this experience.[9] This also has an effect upon the accused who is forced to confront the consequences of his actions in a non-combative safe space.[10] On an institutional level, the possibility of mediation has often lead to more instances of sexual harassment being reported. This is attributed to the fewer negative effects associated with mediation from a victim’s perspectives well as the ease with which employers can use mediation.[11] The reporting and recognition of claims of sexual harassment in turn create an environment that empowers other victims to step forward.

Thus, from the perspective of feminist legal methods an option of mediation being made available to a victim of sexual harassment provides a suitable avenue for recovery and growth. Furthermore, by increasing the ease of enforcement an inclusion of this process can facilitate prevention of such offences.

Restorative justice at its core is a process whereby the stakeholders in the occurrence of an offence collaborate and collectively resolve to deal with the aftermath of the offence.[12] The focus of the offence shifts from the punishment of the accused to the victim of an offence and the implications upon their future. In the context of a traditional adjudication process such questions are never asked, and if it all they are asked the answer rarely ever comes from the victim.[13] The manner in which the mediation option can help is by allowing the victim to express a preliminary position on what changes they feel are necessary to ameliorate the harm faced by them and what can be done to prevent the recurrence of such offences.[14] The restorative approach also widens the circle of responsibility for an offence.[15] In the case of sexual harassment at the work place, this would require the employer to confront and accordingly remedy its unsafe work environment.

However, it is necessary to recognize that taking a restorative view of sexual harassment claims does not mean that the harms caused and the blame attributed are entirely negotiated.[16] The mediation process in such cases must only be a voluntary option and not exhaustive remedy. It must be approached delicately without undermining the validity of the complaint made. In any case, by expanding the forums of redressal and including mediation, a victim-centric outcome can be arrived at.

Dealing with critics of mediation

In order to resolve the ethical conundrum on the use of mediation, it is necessary to address the arguments against the use of mediation in sexual harassment. These concerns can be broadly summarized as; power imbalance and individualizing the offence of sexual harassment.

The issue of power imbalance places the victim in a vulnerable position as opposed to the accused who is more likely to have the support of the employer.[17] This problem is especially compounded where the accused is in a position of power and can coerce the victim into ‘settling for less’[18] or ‘dropping the claim’[19]. Several scholars argue that this factor prevents any suggestion of meaningful mediation. However, such concerns ignore the fact that this aspect of power imbalance exists in any case of sexual harassment at the work place. A mediation option in such a context essentially reframes the question and asks ‘what does the victim want?’. The victim is in the best position to understand and recognize this power imbalance and make a choice between traditional grievance redressal and mediation and should be allowed to do so. Preventing the victim from exercising the mediation option on the grounds that they are unable to recognize this power imbalance and make a choice based upon this infantilizes the victim.

Secondly, some argue that the private settlement of disputes “results in the “disaggregation and privatization of class and public interest problems”-helping the strong to “divide and conquer” and to “neutralize social justice gains” achieved by the women’s movement and other civil rights initiatives.[20] The ability to resolve such claims in private reduces the initiative that employers, state or community have to take preventive action or retributive action against the accused.[21]

Thus, the concern of privatisation of justice proceeds both along the ‘individualised process of mediation’ and the ‘mitigating(as opposed to a substantive) outcome of mediation. The criticism about the outcome of the of the mediation process can be neutralised by refocussing the purpose of grievance redressal in sexual harassment. Formal grievance redressal has not served the preventive and deterrent function that was envisaged. It has not solved the issue of underreporting of sexual harassment or the negative consequences faced by women as a result of reporting the offence.[22] With that in mind, it is unreasonable to deprive the victim of the many benefits of mediation that have been outlined because of the social goal of a perceived yet largely unproven, preventive benefit of the formal adjudication processes. Concern may still remain that the process of mediation is apolitical and lonely, where the focus is not on articulation of the public grievance but on ‘re-orienting the perception of the problem’ towards a solution.[23] Therefore there is a need for practitioners to think and practice mediation which includes some of the ‘substantial justice goals’.[24]Some suggestions have been made in this regard.

Why the formal legal process fails women: POSH Act strictures and ICC

Several feminist scholars have been critical of formal legal structures and their ostensible ‘universal’ ‘just and fair’ procedures for failing women.[25] Infact the idea behind having a civil redressal system in workplaces was to eschew the rigours of criminal justice system and provide an ‘effect’ based solution to sexual harassment[26]In this part we interrogate the civil redressal policy in the POSH Act using the feminist legal methods we identified in the last part. If mediation can provide a better way to navigate this system, it would offer an attractive alternative to the institutions created under the POSH Act.

Legal strictures of the POSH Act: criminal trial or civil redressal?

a. Limitation period

The act lays down the limitation of a maximum of six months for filing the complaint with limited powers to the committee to condone the delay.[27] The limitation of three months (extendable by another three months at the discretion of the internal complaints committee) is designed to defeat the claims that are filed.

Making a complaint against a powerful co-worker is often an exhausting exercise[28], and this limitation period shows a lack of sensitivity to this reality of sexual harassment. Here a well -publicised mediation policy which promises to be fully consent based and non-coercive can encourage women to apply for mediation and increase the possibility of reporting. Such a policy can even allow for mediation to take place after the legal limitation period has expired.

b. Reverse victimization

Section 14 of the POSH Act provides for action against the complainant for false and malicious complaints and evidence. In case the ICC comes up with an adverse finding against the complainant, she remains susceptible to an action for malicious prosecution

By allowing this kind of victim blaming after failure of the complaint, this clause silences women, who studies show often continue to blame themselves in coming to terms with sexual violence.[29]It adds to the perils of job insecurity and creates a more hostile environment for them. Some POSH policies of institutions have given more teeth to this reverse victimisation clause by mentioning aggravating factors for punishment such as ‘creating a hostile environment for the accused’ in this malicious prosecution proceeding.[30]

The premise of mediation is that it does not rely upon assigning guilt or forcing one version of events over another. This danger that the victim will be revictimized by the ICC and that their experience will be trivialised does not exist in mediation. Therefore, if the victim feels that their case is not ‘strong enough’ to merit a formal conviction, they still have the option to air their grievance without the fear of retribution by exercising the mediation option.

c. Gendered experience of Universal Natural justice

This natural justice provision of the POSH rules is excessively vague and only provides that ‘principles of natural justice’ shall be followed in ICC proceedings.[31]Feminist legal experts who drafted the original draft bill note that a gender sensitive mechanism of taking evidence and cross-examination was proposed by them.[32]These provisions, which did not make it to theAct, included an option for written statement by the victim, written answers to certain questions during cross-examination and outlawing questions about the character of the victim. Inherent in this departure from rigid rule of natural justice was a concern for the victim’s state of mind.

While some ICCs have incorporated such gender sensitive rules, and they have been upheld by courts[33], not all ICCs are doing so. Even so, the legality of these progressive rules remain in flux. Local Committees where ICC complaints are appealed often overturn cases where such progressive ways of taking evidence are used.[34]Commentators note that often times the ICC proceedings under the pretext of upholding rules of natural justice, mimic the rigours of criminal trial.[35]

An artful mediator then in this context can be expected to hear the woman out despite her emotional or mental state, and innovate with several mechanisms to make the environment safer for the resolution and redressal of disputes. In any case, mediation as a victim driven process will capture the true complexity of a sexual harassment claim. With the help of ‘third party advisors’ of the victim(a model we propose in the next section) the mediator can channel the thoughts of the victim towards articulating why she felt violated and the settlement options she perceives. The mediation setting promises to de-escalate tensions and tone down victim blaming when the victim and the offender perceive each other ‘as people, rather than objects or stereotypes’.[36]

The politics of Internal Complaint Committees: institutionalized power imbalance

Next we explore how structural problems have rendered defunct most mechanisms in the POSH policy which were meant to be gender sensitive. We explore this workplace politics of committees, so that we may propose ways of combating this power imbalance during mediation.

Lack of women members

The Vishakha guidelines and thereafter the rules mandate that the Chairperson of the Internal Complaints Committee should be a woman and atleast 50% of the members of the committee shall be a woman.[37] However, the lack of women in upper and mid-level positions means that these committees often have chairpersons who are stenographers, upper and lower-division clerks etc.[38]Given the rank of the women members, they cannot be expected to take a stand against the accused, especially when he is of a much higher rank. Some committees even are evenled by men, citing the absence of women[39]

Here recourse to a neutral mediation from outside, especially if atleast one mediator is a woman, make for a better environment for resolution. Innovative practices such as inclusion of unions, support groups and psychologists in the mediation process as we propose in the next section can be used to create a safe space for women, away from workplace politics.

Lack of sensitivity about laws, gender and violence

Most committees, research shows don’t feel the need to create their own procedure for dealing with cases.[40]Basic orientation about the POSH Act and rules are often not conducted, citing fewer number of cases.[41]

Committees have been seen to allow questions about the woman’s clothing, sexuality etc. Questions about whether the woman had a drink, was she out with the colleague etc are asked to establish the veracity of claims.[42] Feminist scholars argue that legal bounded rationality cannot grasp with the complexity of what constitutes violence.[43] Mediation then may provide a platform where women are heard and violence can be resolved without reference to the ‘legal offence/lack thereof’ of the accused. Instead the focus could be on stopping the harm and educating the workplace and the accused about what constitutes violence.

Power dynamics

Punam Shehgal and Aastha Dang [44] in their research show that the accused were sometimes considered by the higher administration as ‘indispensable’. There have been instances where the chairperson of the committee vouched for the character of a senior member accused of harassment to the third party member. Third party members were envisioned by the POSH Act to bring neutrality to the ICC’s functioning and legal expertise, sensitivity etc to an otherwise hostile environment.[45] Research however also reveals attempt to restrict third party member’s functioning especially when he is in favour of indicting a higher functionary.[46] Committees also remain susceptible to the directives of the senior management when it comes to releasing of report etc, thereby losing their independence. The harm of sexual harassment is perceived by senior management not in terms of creating a hostile work environment, but interms of disrepute it would bring to the company: leading to hushing up of disputes.[47]

A mediator given his unique position in mediation set-up will perform a better role than an external member in refereeing the dispute. This is because external members are often looked at with apprehension, as employers are afraid that the dispute ‘should not go out of the control of authorities’[48] However, during mediation where the focus is on resolution, rather than on indicting a party or holding employers responsible, such apprehensions can be placated

Towards a gender-sensitive mediation process

In this part we apply the theoretical framework and lessons from an ICC driven model to make some recommendations about the manner in which the actual process of mediation should be operationalized have been presented. We make the recommendations in two parts. First, we deal with recommendations which can help improve the process inside the strict bounds of neutrality and confidentiality. Next, we try to see if some more ambitious suggestion of including some third parties in the mediation should be done. These recommendations are based upon existing literature as well as conversations and interviews with lawyers experienced in the adjudication of sexual harassment claims.

Suggestions in the boundary of neutrality and confidentiality

Selection of the mediator: In a claim of sexual harassment at the work place, it is highly unlikely that the victim will be in a position to suggest or make recommendations on who the mediator should be and would be unable to split or contribute towards the cost of the mediator.[49] Due to this, the employer can notify mediators and the victim can ratify the decision of the employer with the help of her lawyer.[50] The use of co-mediators, one male and one female can help create an environment where each party feels comfortable to know that there is a balance of power.[51]

The first steps taken before the mediation can greatly impact the manner in which the mediation is conducted. In order to get a sense of the manner in which the mediator should proceed, she/he should begin with a neutral investigation to identify the facts that are not disputed by the parties.[52] This examination should not be an adjudication of guilt but a first impression of the case at hand that answers the question of whether the victim is entering into the process voluntarily, to what degree the power imbalance between the accused, employer and victim is likely to manifest itself.[53]
The mediator should ideally begin with a “separate caucus” with each party and identify the issues that must be discussed in a joint session. This caucus will also help the mediator understand if the victim is in a suitable frame of mind to face the accused.
Venue for the mediation- The mediation should take place in a neutral location such as the mediators office or any location preferred by or suggested by the victim as opposed to the offices of the employer.[54] This is because it can be traumatizing for the victim to relive the experience of the abuse in the same location.
As opposed to a traditional mediation, the mediator should avoid setting extremely specific timelines in sexual harassment cases as non-adherence to these timelines can build a sense of hopelessness and force the victim to agree to an offer that might not be in their best interest.[55]

The role of the lawyer, if involved, is extremely crucial in the proceedings in safeguarding the interests of the victim. The following suggestions can be useful to a lawyer representing a victim of sexual harassment:

The lawyer should always ask for a written confidentiality agreement. Such an agreement should prevent the use of any information disclosed in the mediation in any proceeding before an inquiry committee or court proceeding. Such an agreement is likely to be agreed to by the employer and the accused who will wish to protect their reputation.[56]
The lawyer involved in representing the victim must first ensure that the victim is in the “requisite state of psychological readiness to participate in mediation”. This means that the victim is not too emotionally unstable or vulnerable to be forced into a negotiated settlement by the employer or accused.
It is also essential for the lawyer to recognize the primary interests of the victim and accordingly approach the issue of settlement. If monetary compensation is sought, the lawyer should avoid making the first offer and should wait for the response from the employer and the accused. However, when the relief sought includes non-monetary actions such as requiring the offending behavior to stop, protection from such behavior in the future, a letter of apology or requiring the offender to attend sexual harassment training, it can prove useful to clarify these at the outset of the mediation process.
The lawyer must ensure that the agreement arrived at in the mediation is non-binding unless every issue set out has been resolved.

Inclusion of third parties: a big leap for mediation?

Recall the critique of some feminist scholars who reject the mediation as de-politicising and individualising the sexual harassment dispute. Their concern is that individualising the dispute takes focus away from the key idea that sexual harassment by supervisors violates labour rights by subjecting workers to sex-discrimination.[57] The likelihood of the mediator being biased in favour of the powerful and the lack of a ‘public space’ for ‘assertion of women rights’ is the thrust of this criticism.[58] We propose that relying on some innovative ideas which go slightly against the traditional mediation here is necessary to undo the power imbalance which women face.

Including support groups and psychologists

Conventional wisdom dictates against inclusion of third-parties in mediation disputes. Howard Gadlin however suggests including some external ‘advisors’ in the process.[59] Many of the people pursuing sexual harassment grievances already form strong working alliance with a counselor and are hesitant about proceeding without that person’s presence and support. Unions also may have a crucial role to play as advisors in this process. Gadlin notes that he successfully conducted mediation in the University of Massachusetts where several women preferred to be accompanied by their union grievance officer, especially when dealing with an issue for which the potential for disciplinary sanctions existed.[60]

Maya John here proposes that instead of relying on employer nominate ICCs, women should constitute directly elected support groups/committees and nominees of these support groups should play a significant role in ‘providing all kinds of support, advice and a representative voice to aggrieved women employees’.[61] This she feels would stop the individualisation of the dispute and draw attention to the fact that the issue is one which concerns the whole workplace. If the dispute goes to mediation the inclusion of a member of these support committees in the mediation process would mean direct engagement of these directly elected representatives in the mediation process. Scholars have advocated central role to ‘identity caucuses’ inside the workplace when the harassment also targets the identity of the woman.[62]As Gadlin suggests, in capacity of ‘advisors’, be they from these support group or identity caucuses, can help the person accused of sexual harassment understand the situation from the point of view of the person harassed.[63] Therefore mediation can become a forum for understanding and explaining acceptable conduct and gendered ideas of violence to perpetrators and employees. Therefore ‘assertion of the right’ of women and consciousness raising can take place through the mediation process. However, the consent of the woman should be of primary importance as to whether she wants external advisor or not, and as to who the advisor will be.

From the perspective of restorative justice, these advisors, given their experience can help the disputants assess realistically the settlement options developed in the course of mediation.[64]Presence of advisors also tends to balance out disparities in power between the disputants.[65] For the person bringing the harassment allegations it is crucial in providing a sense of security that cannot be achieved merely by the presence of the mediator. ‘In addition, if the adviser is someone with professional or academic standing in the institution, the impact of differences instatus between the disputants seems to be diminished.’ From the perspective of the accused the presence of an adviser/advocate for the alleged harasser eliminates the sense of standing alone against societal opprobrium. For both sides, advisors can provide appropriate educational material, guidance about the negotiation process, and counsel about personal style and conduct throughout the mediation.[66]

Conclusion

In this essay, a theoretical and practical perspective of the possibility of the inclusion of an option for mediation in the adjudication of sexual harassment claims has been presented. The ethical conundrum over whether mediation is permissible in the context of sexual harassment is answered by framing this question using feminist legal methods and tenets of restorative justice. Asking the woman question, using feminist practical reasoning and consciousness-raising leads to the inevitable conclusion that when mediation is voluntary it can provide astounding results for upholding the rights of the victim. These benefits outweigh the concerns overpower imbalance and privatization of claims as the victim has the power to choose the manner of redressal.

The option for mediation is also compatible with and desirable under the POSH Act. The various shortcomings of lack of sensitivity, strict evidentiary requirements, reverse victimization can be ameliorated by providing the victim an opportunity to opt-out of formal adjudication and opt-in for alternate dispute resolution through mediation.

In any case, if mediation is chosen, mediators and lawyers have a crucial role to play in protecting the interests of the victim and ensuring that the victim is not further persecuted by reporting the offense.

Lastly, the role of third parties such as psychologists and support groups has been examined in order to suggest some innovative ways in which the mediation process’s flexibility can be used to address the previously outlined concerns of power imbalance and privatization.

Thus, mediation, if included as an option in the scheme of grievance redressal in sexual harassment can be a useful tool in rehabilitating the victim.

[1]Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990).

[2]Wishik, To Question Everything: The Inquiries of Feminist Jurisprudence, I BERKELEY WOMEN’S L.J. 64, 72-77 (1985).

[3]Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65Fordham L. Rev. 2489 (1997).

[4]Becky Hoover Herrnstein, Women and mediation: A chance to speak and to be heard, 13Mediation Q. 229 (1996).

[5]Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication 72 V.A. Law Rev 543 (1986)

[6]Bartlett, supra note 1.

[7]Janet Rifldn, Mediation from a Feminist Perspective: Promise and Problems, 2 J.L. & INEQ. 21, 30 (1984).

[8]MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635 (1983).

[9]Mori Irvine, Mediation: Is it Appropriate for Sexual Harassment Grievances, 9 OhioSt. J. on Disp. Resol. 27 (1993).

[10] Bond, supra note 3.

[11]Andra Gomberg, Beyond Politics as Usual: The City of Chicago Sexual Harassment Office, 34 Wake Forest L. Rev. 27 (1999).

[12]T. Marshall, Restorative Justice: An Overview 5 (1999).

[13]Id.

[14] Susan K. Hippensteele, Mediation Ideology: Navigating Space From Myth to Reality in Sexual Harassment Dispute Resolution 15(1) Am. U. J. Gender & Soc. Pol’y& L. 43 (2006).

[15]Margaret J Grover, ‘Mediation of Sexual Harassment Claims’ (1995) 24 Brief 55.

[16]Sharvari Kothawade, Sexual Harassment at the Workplace: What Kind of Change Do Internal Committees Need? Economic and Political Weekly- Engage available at: https://www.epw.in/engage/article/sexual-harassment-workplace-what-kind-change-do?0=ip_login_no_cache%3D2b1e5bf58b7a8a961a3206d821235c34

[17]Irvine, supra note 9.

[18]Linda Stamato, Sexual harassment in the workplace: Is mediation an appropriate forum, 10 Mediation Q. 167 (1992).

[19]Id.

[20]Robert A Baruch Bush & Joseph P Folger, The Promise of Mediation (1994).

[21]Sylvia Skratek, Grievance Mediation: Does it Really Work?, 6 NEGOTIATION J. 269 (1990).

[22]Gomberg, supra note 11.

[23]See Lon L. Fuller, Mediation–Its Forms and Functions, 44 S. Cal. L. Rev. 305, 327-328 (1971)

[24]Nancy A. Welch, Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories, 54 J. LEGAL EDUC. 49, 51 (2004).(On how mediators should reflect about whether the victim feels ‘justice’ is done during the process).

[25] Cynthia R. Farina, Conceiving Due Process, 3 Yale J.L. & Feminism 189, 221 (1991).

[26] Maya John, Fears and Furies of Sexual Harassment, 49(15) Econ.Political Wkly 29, 30 (2014).

[27] POSH Act § 9 (2013).

[28] See infra: ‘Politics of ICC’.

[29]Punam Sahgal and Aastha Dang, Sexual Harassment at Workplace Experiences of Women Managers and Organisations, 52(22) Econ.Political Wkly 49, 53 (2017).

[30] NLU Jodhpur’s draft sexual harassment policy[on file with the authors].

[31] POSH Rules § 7 (2013).

[32]Monica Sakrani, Sexual Harassment the Conundrum of Law, Due process and Justice, Economic and Political Weekly-Engage. Available at https://www.epw.in/engage/article/sexual-harassment-conundrum-law-due-process-and-justice

[33] Hira Nath Mishra v The Principal, Rajendra Medical College(1973) 1 SCC 805; See also The Delhi High Court(Ashok Kumar Singh v Delhi University Cr. Appeal 15732/2017(Delhi)) and the Kerala High Court (LS Sibu v Air India WP(C). 4001/2016 (Kerala)) (Courts upheld these novel processes of cross-examination which, considering the sensitivity of the inquiries in question, are in written form, and afford anonymity to the complainant).

[34]Sakhrani supra note 32.

[35] Pujari, Leena, Sexual Harassment is Endemic in Academic Spaces: An Insider’s Perspective, Economic and Political Weekly-Engage. Available at https://www.epw.in/engage/article/sexual-harassment-endemic-academic-spaces-insider-perspective.

[36] Mark S. Umbreit, Mediating Interpersonal Conflicts: A Pathway to Peace 144-45 (1995).

[37] POSH Act § 4(3) (2013).

[38] Paramita Chaudhari, Sexual Harassment at Workplace: Experience with Complaint Committees, 43(17) Econ. Political Wkly 99,105 (2008)

[39] Id.

[40] Id

[41]Bhavila L, Bushra and Beegom R K,, Functioning of Internal Complaints Committees in Government Offices of Kerala, Economic and Political Weekly-Engage. Available at https://www.epw.in/engage/article/functioning-internal-complaint-committees-government-offices-kerala

[42] Sahgal et al. supra note 29; Sheba Tejani, Sexual Harassment at the Workplace, 39(41) Econ.Political Wkly 4491, 4492 (2004).

[43] Nivedita Menon, Rights, Bodies and the Law: Rethinking Feminist Politics of Justice in Gender and Politics in India (Nivedita Menon ed., 1999).

[44] Sahgal et al., supra note 29 at 103.

[45] POSH Rules § 4 (2013).

[46] Sahgal et al., supra note 29 at 105.

[47] AnaghaSarpotdar, Sexual Harassment of Women: Reflections on the Private Sector, 48(40) Econ.Political Wkly 18, 19 (2013).

[48] Sahgal et al., supra note 29 at 105.

[49]Jason R. Yungtum, Mediating Sexual Harassment Claims: If, When and How, 1 J. Alt. Disp. Resol. 28 (1999).

[50] Based on Telephonic Interview with accredited mediator at Centre for Advanced Mediation Practice Bangalore.

[51] Grover, supra note 15.

[52]Becky Hoover Herrnstein, Women and mediation: A chance to speak and to be heard, 13 Mediation Q. 229 (1996).

[53]Yungtum, supra note 50.

[54] Based on Telephonic Interview with accredited mediator at Centre for Advanced Mediation Practice Bangalore.

[55] Based on Telephonic Interview with accredited mediator at Centre for Advanced Mediation Practice Bangalore.