Mediating the way out of sexual harassment?
“Victims of sexual harassment felt that it was their fate and left the company or changed their teams. Many didn’t come back to work. For those who want their problems to be solved very confidentially, ‘mediation’ is the way. There is a huge section of women who want it,” explains Jayaprada H.V., co-founder, Metis.
“Mediation is not a part of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the POSH Act, and it does not come under internal committee formed to look into such matters within organisations. It is something the company can do as an additional forum for women, who do not want to go the formal way,” she maintains.
As many as 15 lakh software professionals work in the Silicon City. The number of technocrats in the country is around 40 lakhs. The IT industry is dealing with sexual harassment cases presently under the POSH Act, predominantly by forming Internal Committees (IC) within the company.
“Mediation is very new, people are still not aware. We introduced ‘mediation’ as an amazing service. It is still catching up in India and it does not mean financial settlement”, Jayaprada elaborates.
As many as 15 lakh software professionals work in the Silicon City. The number of technocrats in the country is around 40 lakhs. The IT industry is dealing with harassment cases presently under the POSH Act.
Rukmani Menon, director and mediator at CAMP Arbitration and Mediation Practice Private Limited, a mediation centre recognised by the ministry of law & justice, explains, “It is a collaborative mode of dispute resolution facilitated by a neutral third party. As compared to other modes of dispute resolution like litigation and arbitration, it is cost and time effective.”
In the West, ‘mediation’ is a highly preferred mode of dispute resolution for all types of disputes, including commercial disputes. In India, most of the states have ‘Court Annexed Mediation Centres’ under the aegis of their respective high courts. These centers are successfully resolving disputes referred by courts.
According to Ms Menon, the POSH Act contemplates filing of a complaint before the internal committee by the victim. The handbook on POSH released by the ministry of women and child development refers to both informal and formal processes to deal with such cases.
“The informal process is at the first instance and is to be available before a written complaint is filed. This is nothing but mediation. Often when the complaint is not grave, parties would prefer to opt for the informal process. The parties should be given a choice as to the process they wish to follow. If they opt for the informal process and it does not result in closure, the victim can opt for the formal process. In most western countries mediation is successfully used to resolve such cases and it falls under the category of ‘workplace discrimination disputes’,” she says.
Presently, the POSH Act provides a formal mechanism to solve a sexual harassment complaint. The law does not permit working on cases which do not come in a written format. That means only if a woman writes and gives a written complaint, the cases would be handled. ‘Mediation’ gives women who do not want to give a written complaint the informal mechanism through which their issues could be solved.
“It is completely done by a third
Mediation, highly preferred in the West, is a collaborative mode of dispute resolution facilitated by a neutral third party. As compared to other modes of dispute resolution like arbitration, it is cost and time effective.
Mediation recognised by law
Mediation for those not wanting written complaint
Informal mechanism only if victim wishes
party. We don’t allow anybody from the company to be a part of the mediation. We don’t even entertain management members. The most important prerequisite for mediation is the approval of victim and alleged harasser. Management will be informed. Mediation happens between the third party, who is neutral party, victim and the alleged harasser,” Jayaprada maintains.
Nirmala says, “Our law provides for conciliation, but only a complainant can request for it. Mediation is not mentioned as an option in our law as of now.”
It is argued that conciliation and mediation overlap a great deal but conciliation has more authority to it as the internal committee (equivalent to a Civil Court) is the facilitator in arriving at a solution that works for both parties.
Moreover, conciliation is typically used for cases where the complaint is generally in the nature of a misunderstanding or a cultural mismatch without malice.
Such cases could be resolved through an honest conversation and apology with the help of the internal committee. In the West, cases are often settled out of court with monetary compensation, but in India, it is always a non-monetary settlement in the conciliation stage.
“For cases which are of a serious nature, we always recommend a formal investigation,” she opines.