IS LITIGATION YOUR FINAL ANSWER? 711
employer breaches the agreement, the Target could file suit and
seek relief under contract law.
In addition, early mediation could clear up any
misunderstanding or miscommunication before the bully,
employer, or Target spends too much time and resources on
litigation. Moreover, the collaborative nature of the mediation
process, and its goal of preserving the employer-employee
relationship, align with Yamada’s humanitarian and dignitarian
approach to crafting the Healthy Workplace Bill.^213 In fact, one
study found that some employees supported their employers’ use
of in-house ADR procedures, such as mediation, to resolve
workplace-bullying disputes.^214 Employees with fewer resources
might prefer to utilize available state-level free or low-cost
mediation programs. During mediation, if the Target feels
“undue settlement pressures” as a weaker party, he may opt out
of the process and still have the option of pursuing a more
formal and adversarial process, such as arbitration or
litigation.^215
Since the federal government has seen immense success with
ADR programs in resolving employment discrimination claims,
drafters of the Healthy Workplace Bill should include language
endorsing out-of-court alternatives to resolve workplace-bullying
disputes. An ADR provision in the Healthy Workplace Bill
could include language similar to Section 118 of the Civil Rights
Act of 1991.^216 In Yamada’s model act,^217 “Section 8—
... the mediator will have to be particularly aware of the power differences
between the parties,... and the importance of follow-up built into the
settlement agreement.”).
(^213) See Yamada, Human Dignity, supra note 27, at 539 (arguing that
employment law focused on human dignity helps to “define both rights and
responsibilities that promote healthy and productive workplaces”).
(^214) See Suzy Fox & Lamont E. Stallworth, Employee Perceptions of
Internal Conflict Management Programs and ADR Processes for Preventing
and Resolving Incidents of Workplace Bullying: Ethical Challenges for
Decision-Makers in Organizations, 8 EMPL. RTS. & EMPLOY. POL’Y J, 375,
394–96, 398.
(^215) See Jenkins, supra note 212, at 28–29.
(^216) Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071
(codified as amended in scattered sections of 42 U.S.C.). Section 118 of the
Civil Rights Act of 1991 states, “Where appropriate and to the extent