THEME: Mediation and Women’s Rights

Sub-theme– Exploring the Ethical Conundrum and feasibility of the process in Sexual Harassment claims

This article was authored by Jasmine Valmiki and Stuti Bhargava from National Law University, Jodhpur.


A girl as a child grows up to become a woman who is being mindful of how she acts and who she interacts with, in the society. In today’s time though, women do not back down from showing and proving that they can be masters of both home and the corporate world. However, the notion that womankind is subservient to the male species has not died down. There are innumerable instances when a woman is made to realize her ‘status’ or ‘role’ in the society.  These individuals do not refrain from making lewd comments and vulgar gestures and ‘offers’ of promotion to the females working under them. Law defines this as sexual harassment. Despite a catena of laws being in place, a number of such cases go unnoticed and unreported. Oftentimes, it so happens that the women refrain from making complaints of such treatment meted out to them or might even be unaware of the fact that they are being sexually harassed. The focus of this paper is on testing the feasibility of mediation as a process of dispute resolution in such cases. The secondary issues addressed in the paper will include ascertaining the reasons why so many cases of sexual harassment go unreported. The paper will also focus upon the need for awareness and establishment of a proper working environment to ensure that a situation where dispute resolution is needed, does not even arise. The authors will conclude their stance by inferring that mediation as a mode of dispute resolution, is not befitting, as far as sexual harassment claims are concerned. In conclusion, the authors will try and come up with suggestions to combat this problem of lack of efficient mechanism and awareness with respect to the present alternatives.


The theme of the project encompasses the basic issue of examination of feasibility of mediation as a mode of dispute resolution in sexual harassment claims. The objective of the essay is to explore and examine the efficacy of the process of mediation in dealing with sexual harassment claims. The essay will go on to discuss and study the various issues with mediation as a mode of dispute resolution process. It throws light upon how cumbersome a process can litigation prove to be, especially in cases where the dignity and reputation of the victim is at stake. Undoubtedly, if litigation has its cons, mediation is definitely not a full proof mode of dispute resolution. Especially in cases of sexual harassment claims where the women is already at a risk of being subjected to criticism and cat-calling, a carelessly conducted mediation session could prove to be a bane rather than resolving the “so called dispute”.

The paper will try and sensitize the readers about the issue of sexual harassment and explore the feasible process to deal with such cases, and come up with suggestions to overcome the problem of increasing sexual harassment claims and the lack of an efficient mechanism to deal with such cases.


“This is a man’s, man’s, man’s world.” James Brown in this album of his quite beautifully and at the same time connivingly justifies his claim that it is a man’s world after all. Women empowerment, in recent times, is a word that has so casually been used that it has lost all meaning. While gender equality has been promoted through various campaigns, literary works and speeches, when it comes to allowing women their safe-space all ideas of equality fall flat. Whether it be advocating for equal pay for equal work, or fighting to help free women from the clutches of orthodox societal norm, several social worker and activists came forward and took initiative. However did the fight end there? It definitely did not.  The number of cases of sexual harassment in the past decade is so high that proudly proclaiming principles of equality holds no meaning anymore. The Equal Employment Opportunity Commission (EEOC), almost two decades back, in the year 2003, reported that it received as many as 13,556 sexual harassment claims.[1] If the number of reported cases in the year is as high as the one stated, undoubtedly, the number of cases have been on the rise in the recent years. Considering the era we are in today, people, especially women have taken to standing up for their rights and dignity. The “#MeToo” campaign is an instance of such an initiative. However, the fact remains that such campaigns and short term initiatives are not going to prove to be helpful in the long run. What the world in general and our country in particular needs is a mechanism to tackle such cases. The society that we are a part of has been male centric since the beginning of time. Even today, there are parts of the country and the globe that believe in the subservience of the female race and the dominance of the male community. After having struggled for years and centuries at a stretch, we have reached a place where women are out working alongside men however that does not mean that the struggles and the difficulties that the women have to face end here. The struggles persist in the form of comments, taunts and sexual harassment so much so that a woman is forced to believe that there is something definitely wrong with her. A self-assured woman begins to drown herself in self-doubt. In a place where she might have worked hard to find her footing after years of hard work, a moment of insensitivity and thoughtlessness shatters this reputation and hard earned position. The Indian judiciary has time and again asserted and reaffirmed its belief that sexual harassment is gender discrimination against women.[2] Long before the Vishaka Guidelines[3] gave way to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Indian Penal Code had provisions that already acknowledged assault and outraging the modesty of a woman.[4]

Oftentimes, the women out of guilt and the fear as to what a complaint would do their reputation, do not report cases of sexual harassment. In a survey conducted by the Indian Bar Association in 2017, as many as 70%  women said that they did not report sexual harassment by their superiors because they feared the repercussions.[5]


Undisputedly, sexual harassment cases continue to be a serious problem both globally and in India, be it in terms of the claims filed and brought to notice, or the number of unreported cases.  This is a situation that warrants concern. Even after various efforts of the government, in the form of introduction and formulation of various new laws after the Vishaka guidelines[6], in the form of The Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Act, 2013, there has been no significant improvement in the number of cases of sexual harassment. As a matter of fact, the number of such claims has been on the rise. The official figures turn out to be poor indicators of what is truly the condition of such offences and offenders primarily because of female guilt and the need to save their names from being the subject of gossip and criticism. Most of the victims of sexual harassment, do not report their cases because it consumes a lot of their energy, time and money. While the aforementioned is true to a large extent, another important reason for not reporting these cases is lack of courage. In most of the cases of sexual harassment like the ones of bullying, stalking, passing vulgar references and lewd comments, the FIR or complaints of victims is rejected oftentimes due to the insufficiency of evidences. Instances like these dissuade and discourage the victims from raising their voices in the future.

The primary reason for choosing this theme is to highlight the problems faced by women, the trauma and guilt that they undergo despite not being the one at fault. Their only fault, it appears is that they are born in a patriarchal society. This paper is thus, an attempt to bring to light the lack of options that these women have and the possible avenues that could be open to them after having been subject to such abuse.


Cases where an individual’s modesty has been outraged are the most sensitive cases to be dealt with. The same has been the case with sexual harassment and sexual assault cases. The area of study of this paper has been restricted to the use and study of Sections 354A and 509 of the Indian Penal Code.

Importantly, sexual harassment cases are not gender specific. There have been instances of sexual harassment where men have been the victim of such abuse. However, since most cases of sexual harassment are such that women are the victims of harassment, the scope of this project has been limited to women victim. The tries to include within its ambit of study the special legislation that came from the Vishaka Guidelines in the year 2013 referred to as The sexual harassment of women at workplace (Prevention, Prohibition and Redressal) act, 2013.

The paper as has already been mentioned most importantly deals with the question as to the feasibility of the process of mediation in sexual harassment claims considering their sensitive nature. The paper while answering the former questions attempts to come up with suggestions to improve the dispute resolution mechanism in such matters.


The main issue that this paper seeks to discuss and answer is whether it is feasible for a sexual harassment claim to be tackled through the process of mediation or out of court settlement.

Before delving into the discussion as to what are the arguments in favour of and against the premise of our essay, it is important that we understand what we are essentially talking about when we use the term sexual harassment.  Sexual harassment as the Indian Penal Code defines constitutes a man committing the following acts, a) physical contact and advances involving unwelcome and explicit sexual overtures; or b) a demand or request for sexual favours; or c) showing pornography against the will of the woman; or d) making sexually coloured remarks.[7] Further developments were seen in the law that developed after the Vishaka Guidelines were issued by the Supreme Court. Section 2(n) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, where sexual harassment has been defined to include any one or more of the following unwelcome acts or behavior (whether directly or by implication) like, physical contact and advances; or a demand or request for sexual favors; or making sexually colored remarks; or showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.[8] Undoubtedly, the nature of a sexual offence, especially a case of sexual harassment if it is happening at the victim’s workplace is such that there is a power dynamic between the accused and the victim. There are so many cases where the victim does not even raise her voice since the form of harassment is such that it can be passed off as a joke. Considering the individual making such comments or gestures is a superior, the subordinate or the victim is afraid to raise her voice against such a bully.

With changing times though, there has been an increase in the number of cases and sexual harassment claims and women have raised their voices against such abuse. The pertinent question that arises next is how should such cases be tackled? The courts are already burdened with the task of disposing off a multitude of cases. Especially in a case where the victim is already undergoing a lot of stress as to the repercussions of divulging such private information, is a court trial the right way to settle the case?  Out of the alternatives that are available to the victim in such cases, one of the well known procedures is mediation or what is popularly known as out of court settlements.


Mediation in the simplest sense of the word refers to the process through which the disputing parties negotiate a voluntary settlement of their differences with the help of a third party who typically has no stake in the outcome.[9] Mediation or out of court settlement is an alternative present to willing parties who are not interested in getting involved in the tedious and cumbersome process of litigation.  In contrast to cases where the remedy is fashioned in the manner in which the judge or the court wants it to be, in cases where the dispute resolution happens through the process of mediation the remedy that the parties desire are according to what they would want it be. However, is mediation best suited to cases of all kinds? Or more specifically, is mediation the answer in sexual harassment claims.

As per the 2016 report provided by NCRB there has been a tremendous increase observed in workplace harassment under sec 509 of IPC, NCRB reported that 665 cases had been reported in 2016 in contrast to the number of 526 cases in 2014.[10] As per the data provided by Lok Sabha, there was an increase of approximately 54% from 371 in 2014 to 570 in 2017, in the number of reported cases of workplace harassment.[11] The problem does not end here. Another integral part of the problem is the number of unreported cases and the lack of encouragement that persists and proves to be the reason for such claims not being made.

In an attempt to learn the meaning and scope of the term, sexual harassment, the courts of US have recognized two different types of sexual harassment. The first is quid pro quo harassment which literally translates into “this for that.”[12] This form of sexual harassment is one where supervisor requires that a subordinate exchange sexual favors in order to obtain a promotion. The other type of harassment is hostile environment harassment. The U.S. Supreme Court in describing this type of harassment stated that “as long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, it is sexual harassment.”[13] This hostile environment harassment is where an employee is subjected to repeated sexual comments or innuendos in the work place. This type of harassment may be committed by a supervisor or co-employee.”[14]

Despite bringing into place various legal provisions that define and punish sexual harassment, there still remain a huge number of cases that are either not reported or remain unsettled. Undoubtedly, this is something to be worried about. We cannot let these cases be but is mediation the right answer to help combat such claims. An important question that this segment of the paper shall try and answer is whether this form of dispute resolution is best suited to the kind of problems that sexual harassment claims that are brought forth.

In the course of this segment of the paper, we are will discuss both sides of the coin, throwing light on how mediation could be turned to, in sexual harassment cases and the contrary opinion as to how mediation is not the right alternative of dispute resolution in such type of claims.


  • Mediation, as an inexpensive mode of dispute resolution:

Litigation is unquestionably a lengthy process which is both time and money consuming.  Litigation is one process where there is no certainty as far as the outcome is concerned. The dispute may take a month to be settled or may take years and still not be settled. On the contrary, mediation is one such process that is inexpensive, informal and expeditious. In a case of sexual harassment claims, when the victim is at the peak of her careers, she would certainly not want to go through a process that drains her of energy, time and money. In addition, litigation leaves no room for flexibility. Mediation on the contrary, ensures that the remedy chosen or the compromise reached is one which is best suited to the interests of the both the parties. While there is a possibility of influence and money being used to incline the case in favour of the harasser, in a mediation session, the mediator who is a neutral party, has no stake in the problem would ensure that a victim friendly environment is created hence impartiality as a virtue is assured.

  • Mediation proves to be a successful mode of dispute resolution even in cases which are not as extenuating as others:

In most of the cases of sexual harassment like passing of lewd comments and inappropriate gestures, victims are dissuaded from reporting the cases because of the nature of claim and the insufficiency of evidence. They are made to believe that taking such matters to the court would only be a waste of time which it usually is.  Since, most of such cases are not registered because of lack of evidence, such behaviour and abuse at workplace is encouraged. Mediation on the contrary would prove to be helpful in cases where the circumstances were not as extenuating. Mediation helps the victim in such cases, to speak freely and vent out her feeling that have arisen as a result of disparaging treatment meted out to her.[15]. An experienced mediator would ensure that the matter is heard patiently and directed accordingly, to reach a solution that benefits the victim and the accused.

It is often seen that the victim after having filed a complaint against the harasser at her workplace, is subjected to taunts and criticism which leads her to quitting her job. Mediation helps resolve this conflict by ensuring that a compromise or settlement is reached between the parties.

  • Privacy:

In world of women empowerment, gender equality, equal opportunities and equal rights, women are still facing gender stereotypes, societal judgments and character assassination. In this society like ours, it takes lot of courage for women to come out of their safe space and speak up against the abuse they are facing. It is feared that court hearings will not only involve the victims but also drag in their families, friends and relatives. Therefore, in order to avoid this judgment and keep the matter between the parties, mediation could be opted for. The informal setting and the privacy that this process of mediation ensures, is best suited to the needs of a working woman who might not want to compromise her work and life balance.

The right to life as envisaged in Article 21 of the Constitution of India[16] does not merely promise an animal life. It promises a life full of dignity. Mediation as a mode of dispute resolution ensures that the dignity and privacy of the victim is not compromised in any case.

  • Mediation ensures that the right to equality envisaged under Article 14 of the Indian Constitution is not compromised.

Article 14 of The Constitution of India[17] promises equality be it gender, caste based or societal. In cases of sexual harassment at work place, it is possible and happens most of the times that the harasser is in a position of dominance. The thought that the harasser anyways would have a better case and a chance to win the case discourages the victim from filing a complaint against the aggressor.

In a case where both the parties are treated equally, mediation can prove to be a suitable option. To make sure that there is no trace of discrimination, there is a neutral party present in the session to direct it so successful completion. Thus, mediation places the accused and the victim on equal footing. In the presence of an adept mediator, the power imbalance between the harasser and the victim, if any, is done away with, to quite an extent. Oftentimes, it so happens that the women are not even aware of the power imbalance that exists between them and their harasser. Mediation as a mode of dispute resolution helps her realize this power imbalance and allows her to learn to overcome it.

  • Mediation helps settle the case on amicable and friendly terms:

Mediation ensures the satisfaction of both the parties. It is a win-win situation unlike Litigation where one party ‘loses’ and other ‘wins’ the case. Mediation gives a chance to both the parties to present their case and settle on amicable terms which benefit both the parties.

Once the matter reaches the court, the parties lose control over it; it will work according to procedure established by law.  The discretion to let the person off to punish him suing the strictest means of punishment rests with the judge. On the contrary, in course of a mediation session, the parties are in complete control of the direction in which they would want the session to head in. The parties can decide the manner in which they would to fashion the remedy, making sure that neither party is at a disadvantage.

  • Mediation softens the harsh rigors of law:

Mediation in the cases where law is not proportional and is too harsh on the accused could prove to be helpful. Not only does mediation keep in mind the need for the harasser to be reform, the objective of such a session isn’t victory or defeat, it is about protecting the interests and rights of the victim. However, protecting the rights and interests of the victim does not mean disregarding the perspective of the other party. Mediation takes into account both sides and their perspectives before deciding on a well suited and needed remedy. If that means disciplining the harasser, so be it. Mediation ensures that the harasser is not demonized. In a quest to removing the gender discrimination, law ends up doing it. Mediation, on the other hand, is cautious of such a possibility.


  • The power imbalance between the victim and the harasser.

Mediation best works in a setting where both the parties at loggerheads are on an equal footing. In a case of a sexual harassment claim, there is a power dynamic such that the harasser or the superior is in a position of dominance while the victim is in a weaker position. When both the parties, assuming they consent to such a session, come together, what does the superior has at stake? He still is in a position to use his position to his advantage. This power imbalance makes it impossible for mediation to be used as a mechanism to resolve a dispute such as this one.

  • The risk of trivializing the victim’s case.

Considering, victims of sexual harassment are usually women, in a society like ours, claims of sexual harassment are always at the risk of being trivialized.

A lot of surveys show that women go through periods of guilt believing that if they try to go along with their harasser or submit to the demands made, the bullying or abuse will stop happening.  Many philosophers and theorists draw analogies between such victims and victims of battered wife syndrome. The woman in the latter case feels that if he works a little harder, if she is able to please her husband, the beating or physical abuse will stop. Women in most of these cases, begin to blame themselves, and end up not complaining about this abuse. With mediation as a process of dispute resolution, there is thus always a chance of trivializing the agony and pain of the victim.

Also, the reduction of penalty that usually ends up happening in course of a mediation session may send a wrong message to the male bullies and may spread a wave of fear among the female work force.

  • The nature of offence is such that a compromise or reconciliation would prove to be insufficient.

Mediation is successful in cases where the dispute is of such a nature that the parties if reach a compromise, will benefit both the parties. The nature of a sexual harassment claim is a lot different than a, say, civil dispute. A lot is at stake when a woman comes forward to talk about such abuse that she has faced. Such abuse is not something to be reconciled. A compromise would work well in cases where the wronged benefits out of the deal or compromise. What good comes out of a mediation session for the victim except for a compromise which appears to be a pathetic excuse for a remedy?

The belief that sexual harassment cases should be handled with an iron fist, thus is not baseless. What is needed here is a clear and loud message to the transgressors. A mediation session in no certain terms does that.

  • A successful mediation session is a chance.

A successful and fruitful mediation session depends a lot on the skills of the mediator and how sensitively and cautiously he handles the dispute. Since most of the victims of such cases are women, the role of the mediator becomes all the more important. He has to be compassionate, sensitive and patient while guiding the mediation session. The probability that the mediator is going to be an adept one is just a fraction of a whole. For a woman who has gathered a lot of courage to finally come up with the will power and determination to register a complaint against the harasser cannot be left to be subject to a chance.

There is no fact finding or investigation that happens. Whatever the parties say goes and a settlement is reached on the information shared. What appears to be a successful end might in reality be a well-crafted end to suit the whims of the dominant party in such a session?

  • Forcing Mediation may end up being detrimental to the interests of the victim.

There are instances where the victim is not even in a condition to face the employer or the harasser. In such cases, what usually happens is that a representative on behalf of the victim is chosen to put her side of the story on the table. The negotiation thus, does not take place between the harasser and the victim. She does not get a chance to vent her feelings and speak her mind. The entire purpose of mediation ends up failed. It may so happen that the compromise reached may not be what the victim wants but may have to settle for whatever is communicated to her.


Sexual harassment is one of the widest ranging terminologies used. It ranges from carelessly thrown comments and innuendos to unwanted physical touch and propositions for sexual favours. The nature of such an offence is lot different than, say, a civil dispute. In cases of such a nature, there is an aggressor and an individual who enjoys a position of dominance over the victim who is generally a part of the female work force. What needs to be understood is the fact that in such instances of abuse or harassment, the harasser always hold power over the victim. This statement or claim does not have to be misunderstood. The power imbalance between the harasser and the victim is so significant that it is impossible for them to be placed on an equal footing in a mediation session. If this were to be considered true, negotiation between the parties would be impossible. Hence, the authors strongly believe that mediation is not feasible as far as sexual harassment claims are concerned. this belief does not stem from whims and fancies. It stems from the understanding that not everything that can be compromised upon. While it is true that there exist grey areas in almost all cases of disputes and instances of a legal nature, a line needs to be drawn and it needs to be understood that cases like these are either black or white. Either the abuse has happened or it has not. Mediation, as has already been discussed, runs a risk of trivializing the pain, agony and trauma of the victim. Those who believe in the feasibility of mediation as a mode of dispute resolution mechanism forget that there are cases where the circumstances are so serious that an apology seems less serious, insufficient and even inconsequential. There is no doubt as to the fact that the presence of an adept mediator can do wonders to the session but a good mediation session is a chance, a mere probability. Considering the gravity of the offence, it is not a chance worth taking. The fact of the matter in such a case remains that the harasser in a moment of insensitivity and thoughtlessness, did something that destroyed a woman’s sense of righteousness and virtue.In proposing and reaffirming our belief that mediation is not an appropriate forum to resolve sexual harassment claims, we believe that this issue of sexual harassment would not even arise if a proper and healthy working environment is provided in the workspace. While we acknowledge the fact that it is impossible to change and reform the mentality and thought pattern of individuals, it is possible to ensure that these people are made to understand the difference between acceptable behaviour. The employer could begin by making sure that all the contracts of employment contain anti-discrimination clauses. Strict conditions and human resource policies must be reinstated to make sure that no employee takes the conditions of the employment contract for granted. An important part of this initiative is awareness. There are times when women instead of reporting their superior or whoever the harasser is, start beating themselves up and fail to realize that it is not their words or language or dress sense or lack thereof that inspires this abuse. The only person who should be held responsible for such behaviour is the person who indulges in such use of actions or language. The Vishaka Guidelines[18] as laid down by the judiciary, should be complied with to ensure that women enjoy a safe place to invest their time and energy in. Minor cases of bullying and use of vulgar terminology can, indisputably can be referred to out of court settlement. The issue at hand is with respect to cases that involve serious issues of violation of a woman’s right to equality and dignity. While the accused can be let off with a warning or disciplinary action, the latter needs to be treated with an iron fist.

It is time that we come forward and make known to the individuals of the country that it is time we let go of the reservations that one might have with respect to the status of a woman in the society. We have come a long way from a time when woman did not step out of the four walls of their house. It is time we understand that women should enjoy the liberty and dignity that is promised to the citizens of the country. There is no reason why differential treatment should be meted out to her. Only when this is understood and ingrained in our minds, will we be able to proclaim with pride that we, as human beings have evolved with time.


[1]EEOC Available at:; Swift, Maris Stella; Pace, Diana; and Bedikian, Mary (2005) “Using Mediation to Address Sexual Harassment Claims in the Work Place,”Seidman Business Review: (Vol. 11: Iss. 1), Article 10. Available at:

[2] Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.

[3] Vishaka and ors. V. State of Rajasthan, AIR 1997 SC 3011.

[4] Indian Penal Code, §509.

[5] Sanjay Kaushik & Kaviraj Singh, Report Garima Sexual Harassment at Workplace, By Indina National Bar Association (2017); #MeTooIndia: 54% Rise in Sexual Harassment Reported At Workplaces Between 2014-17, (January 25, 2020 at 10:20 AM), Available at:

[6] Supra note 3.

[7] Indian Penal Code, §354A.

[8] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, § 2(n).

[9] Nancy H. Rogers & Richard A. Salem, A Student’s Guide To Mediation and the Law; cited in , Mori Irvine: Mediation: Is it appropriate for Sexual Harassment Grievances, Ohio State Journal on Dispute Resolution [Vol. 9:1 1993], pg. 30.

[10] Insult to modesty, National Crime Record Bureau Report 2014 & 2016;  #MeTooIndia: 54% Rise in Sexual Harassment Reported At Workplaces Between 2014-17, (January 25, 2020 at 10:20 AM), Available at:

[11] Lok Sabha unstarred question no. 1763, Government of India, Ministry of Women and Child Development, Annexure regarding sexual harassment of women at workplace, Report 2014 & 2017; #MeTooIndia: 54% Rise in Sexual Harassment Reported At Workplaces Between 2014-17, (January 25, 2020 at 10:20 AM),  Available at:

[12]Burlington Industries v Ellerth, 118 S. Ct. 2257 (1998); Swift, Maris Stella; Pace, Diana; and Bedikian, Mary (2005) “Using Mediation to Address Sexual Harassment Claims in the Work Place,” Seidman Business Review: Vol. 11: Iss. 1, Article 10. Available at:

[13]Harris v Forklift Systems, Inc. 510 U.S. 17 (1993); Swift, Maris Stella; Pace, Diana; and Bedikian, Mary (2005) “Using Mediation to Address Sexual Harassment Claims in the WorkPlace,” Seidman Business Review: (Vol. 11: Iss. 1, Article 10). Available at:

[14]Swift, Maris Stella; Pace, Diana; and Bedikian, Mary (2005) “Using Mediation to Address Sexual Harassment Claims in the Work Place,”Seidman Business Review: (Vol. 11: Iss. 1), Article 10. Available at:

[15] Id.

[16] The Constitution of India, 1950, Art. 21.

[17] Id, Art. 14.

[18] Supra note 3.

Categories: Law/Legal