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A Mediator's Ethical Responsibility in Cases Involving Sexual Harassment

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A Mediator's Ethical Responsibility in Cases Involving Sexual Harassment 2019 A Mediator’s Ethical Responsibility in Cases Involving Sexual Harassment CO-SPONSORED BY EDNY ADR DEPARTMENT │ COLUMBIA LAW SCHOOL ETHICS COLLOQUIUM UNITED STATES FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK AGENDA A Mediator’s Ethical Responsibility in Cases Involving Sexual Harassment FRIDAY, MARCH 29, 2019 12:00PM – 12:10PM WELCOME AND OPENING REMARKS 12:10PM – 12:25PM ETHICAL GUIDELINES FOR MEDIATORS 12:25PM – 12:40PM SEXUAL HARASSMENT OVERVIEW 12:40PM – 1:55PM MEDIATING SEXUAL HARASSMENT: DECISION POINTS FOR MEDIATORS 1:55PM – 2:00PM Q&A AND CLOSING REMARKS THURSDAY, NOVEMBER 1, 2018 THURSDAY, NOVEMBER 1, 2018 TRAINER BIOGRAPHIES PROFESSOR ALEXANDRA CARTER Alexandra Carter is a Clinical Professor of Law and the Director of the Mediation Clinic at Columbia Law School. From 2012-2016, she also served as the Law School’s Director of Clinical Programs, providing leadership in the area of experiential teaching and learning. Professor Carter’s teaching, research and publications lie in the field of alternative dispute resolution, primarily in mediation and negotiation. She has been sought as a trainer on mediation, civil procedure, negotiation and dispute systems design for many different groups from private and public sectors, including the United Nations, U.S. courts and federal agencies, private corporations and law firms. She has addressed the Chinese Academy of Social Sciences Rule of Law Conference, the 5th World Peace Conference in Jakarta, the ICU-CLS Peace Summit in Tokyo, and the Ceará Supreme Court Conference on Mediation; and has contributed as a faculty speaker at universities in South America, Asia and Europe. She has served on the Alternative Dispute Resolution Committee for the New York City Bar Association, as well as the Mediator Ethics Advisory Committee for the New York State Unified Court System. Prior to joining the Columbia faculty, Professor Carter was associated with Cravath, Swaine & Moore LLP, where she worked as part of a team defending against a multibillion dollar securities class action lawsuit related to the Enron collapse, served as the senior antitrust associate on several multibillion dollar mergers, and handled cases involving copyright law. Professor Carter received her Juris Doctor degree in 2003 from Columbia Law School, where she earned James Kent and Harlan Fiske Stone academic honors. She also won the Jane Marks Murphy Prize for clinical advocacy and the Lawrence S. Greenbaum Prize for the best oral argument in the 2002 Harlan Fiske Stone Moot Court Competition. After earning her degree, Professor Carter clerked for the Hon. Mark L. Wolf, U.S. District Court for the District of Massachusetts in Boston. PROFESSOR CARTER’S RESEARCH TEAM HEIDI L. GUZMAN Heidi L. Guzmán is a third-year student at Columbia Law School. Aside from her participation in the Mediation Clinic, Heidi is also a member of the Latinx Law Students Association and a Notes Editor for the Columbia Journal of Race and Law. LAUREN MATLOCK-COLANGELO Lauren Matlock-Colangelo is a third-year student at Columbia Law School. She is a member of the Mediation Clinic and a Notes Editor for the Columbia Law Review. SHINJI RYU Shinji Ryu is a third-year student at Columbia Law School. Shinji is a member of the Mediation Clinic, an Online Editor for the Columbia Law Review, and a member of the Asian Pacific American Law Students Association. ADDITIONAL READINGS I. MEDIATION OF SEXUAL-HARASSMENT CASES 1. Jan Frankel Schau, Where Confidentiality and Transparency Collide: In Sexual Harassment Cases, Mediators Face a Modern-Day Dilemma, 25 DISPUTE RESOL. MAG., Winter 2019, at 6. 2. Susan K. Hippensteele, Mediation Ideology: Navigating Space from Myth to Reality in Sexual Harassment Dispute Resolution, 15 J. GENDER SOC. POL’Y & L. 43 (2006). 3. Robert Lewis, Mediation of a Sexual Harassment Claim, 24 HOFSTRA LAB. & EMP. L.J. 87 (2006). 4. Howard Gadlin, Careful Maneuvers: Mediating Sexual Harassment, 7 NEGOT. J. 139 (1991). 5. Barbara J. Gazeley, Venus, Mars, and the Law: On Mediation of Sexual Harassment Cases, 33 WILLAMETTE L. REV. 605 (1997). 6. Susan A. FitzGibbon, Arbitration, Mediation, and Sexual Harassment, 5 PSYCHOL. PUB. POL’Y & L. 693 (1999). 7. Linda Stamato, Sexual Harassment in the Workplace: Is Mediation an Appropriate Forum?, 10 MEDIATION Q. 167 (1992). 8. Mori Irvine, Mediation: Is It Appropriate for Sexual Harassment Grievances?, 9 OHIO ST. J. ON DISPUTE RESOL. 27 (1993). 9. Carrie A. Bond, Note, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 FORDHAM L. REV. 2489 (1997). II. SEXUAL HARASSMENT, TRAUMA, AND PSYCHOLOGY 1. Claudia Avina & William O’Donohue, Sexual Harassment and PTSD: Is Sexual Harassment Diagnosable Trauma?, 15 J. TRAUMATIC STRESS 69 (2002). 2. David Isaacs, Editorial, Sexual Harassment, 54 J. PAEDIATRICS & CHILD HEALTH 341 (2018). 3. Thomas A. Kernodle, Workplace Sexual Harassment, in 4 SAGE ENCYCLOPEDIA OF PSYCHOLOGY AND GENDER 1852 (Kevin L. Nadal ed. 2017). VOLUME 25, NUMBER 2 WINTER 2019 MAGAZINE Keeping things confidential in sexual harassment cases Non-disclosure agreements: What do we do now? Realizing restoration for victims and offenders PUBLISHED BY THE AMERICAN BAR ASSOCIATION SECTION OF DISPUTE RESOLUTION Published by the American Bar Association Section of Dispute Resolution Volume 25, Number 2 MAGAZINE WINTER 2019 EDITORIAL BOARD Chairs Features Andrea Kupfer Schneider Michael Moffitt Marquette University Law School University of Oregon School of Law Milwaukee, WI Eugene, OR 3 From the Chair 25 Research Insights Members Edited by James Coben and Donna Stienstra Frederick Hertz Sharon Press Oakland, CA Mitchell Hamline University School of Law 30 On Professional Practice Heather Scheiwe Kulp St. Paul, MN By Sharon Press New Hampshire Judicial Branch Concord, NH Lionel M. Schooler Jackson Walker 34 Section News Kelly Browe Olson Houston, TX U.A. Little Rock William H. Bowen School of Law Effie D. Silva Little Rock, AR Tyson Foods Articles Machteld Pel Chicago, IL Arnhem, The Netherlands Joan Stearns Johnsen 5 Looking beyond the hashtags Sunu M. Pillai University of Florida Levin College of Law Saul Ewing 6 Where Confidentiality and Transparency Collide Pittsburgh, PA Gainesville, FL Council Liaison In sexual harassment cases, mediators face Organizational affiliation for identification purposes only. a modern-day dilemma By Jan Frankel Schau Editor Gina Viola Brown 12 Non-Disclosure Agreements and the #MeToo Movement What do we do now? By Elizabeth C. Tippett Associate Editor Louisa Williams 16 #MeToo and Restorative Justice “On Professional Practice” Contributor Realizing restoration for victims and offenders Sharon Press By Lesley Wexler and Jennifer K. Robbennolt Mitchell Hamline University School of Law St. Paul, MN 21 Sexual misconduct on campus Setting a course for handling cases properly — and changing the culture By Brian A. Pappas Dispute Resolution Magazine is published Reprint Permission quarterly by the American Bar Association www.americanbar.org/utility/reprint.html Section of Dispute Resolution. Email: [email protected] ISSN: 1077-3592 © 2019 American Bar Association Advertising For information about advertising rates, contact Contacting the Magazine M.J. Mrvica Associates, Inc., at 856-768-9360 or Article ideas, letters, and other [email protected]. correspondence can be sent to: Dispute Resolution Magazine Editorial Policy ABA Section of Dispute Resolution Dispute Resolution Magazine welcomes a 1050 Connecticut, NW, Suite 400 diversity of viewpoints. Articles, therefore, Washington, DC 20036 reflect the views of their authors and do Phone: 202-662-1680 not necessarily represent the position of Email: [email protected] the American Bar Association, the ABA Section of Dispute Resolution, or the editors Subscriptions of the magazine. Nonmembers may subscribe to the magazine for $55 per year. Back issues are available for Article Submissions $12 per copy plus $5.95 shipping. Subscriptions The Editorial Board welcomes the submission can be purchased at shop.americanbar.org of article concepts as well as draft articles (search for “Dispute Resolution Magazine”) or relevant to the field of dispute resolution. through the ABA Service Center: The Editorial Board reviews all submissions Phone: 312-988-5522 and makes final decisions as to the publication Email: [email protected] of articles in Dispute Resolution Magazine. Email submissions to Gina Brown, Editor, Change of Address at [email protected]. Submission Send change-of-address requests to: guidelines are available on the Publications ABA Service Center page of the Section of Dispute Resolution 321 North Clark Street website: www.americanbar.org/dispute. Chicago, IL 60654-7598 Digital and online editions of Dispute Resolution Magazine are available to Phone: 312-988-5522 members of the ABA Section of Dispute Resolution at www.americanbar.org/dispute. Email: [email protected] Join the ABA Section of Dispute Resolution to receive all the benefits of membership, including quarterly issues of Dispute Resolution Magazine. Where Confidentiality and Transparency Collide In sexual harassment cases, mediators face a modern-day dilemma By Jan Frankel Schau e have now gone far beyond the “he said, Some of the new key questions she said” controversy in sexual harass- One of the basic principles of mediation is that the Wment cases. Reports of complaints about participants should feel free to communicate intimate, Hollywood producer Harvey Weinstein
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