Impartial Conflict Management

This is a risk-management strategy for addressing workplace complaints like sexual harassment that require employers to make credibility decisions for which they are unqualified either by experience, training, or disinterest. Rather than getting caught between and becoming adverse to the primary disputants, the employer essentially contracts out the investigation and finding of fact to a qualified, impartial third party saying, in effect, “I won’t decide what to do until I have neutrally-certified facts.” It’s a minimalist process: no one gives up anything, and the employer is contracting out the fact-finding process that must occur to a person with unassailable credentials to do it. The four potential outcomes manage risk of loss due to conflict either by minimizing or neutralizing potential exposure to liability and damages. In the worst case scenario where the investigator finds that the sexual harassment did in fact occur, that answer comes within two or three weeks of the complaint. The employer can then take appropriate steps to settle claims and correct the underlying circumstances as cheaply as possible rather than waiting four years while damages accrue to learn from a jury that it should have believed the other disputant or that its own investigation had been inherently biased. Where the impartial investigator determines either that no sexual harassment occurred or that insufficient evidence exists to support the claim, the employer can take appropriate action to address the underlying circumstances like sensitivity training, separating the primary disputants, and monitoring their future interactions. And the complainant, having had that complaint taken seriously and a fair opportunity to convince an impartial third party with impeccable fact-finding credentials, may (a) be able to get past the issue and continue working without further complaint or, if he or she seeks a lawyer to pursue litigation, (b) be less likely to find one willing to take the case on a contingent fee basis or, if he or she can afford to pay a lawyer, (c) be at a litigating disadvantage because, having had a neutral determination of no cause, the employer’s posture before a jury will effecitvely be “What more could we have done?” Certainly the process will have gone a long way toward neutralizing potential punitive damages and even liability in the first place.