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process,^207 however, a party who feels intimidated may address
these concerns with the mediator or refuse to accept the
agreement altogether. Accordingly, the party may still pursue
other alternatives, like litigation or arbitration, which are more
formal adjudicatory processes.^208 Finally, concerns about
language barriers impeding access to justice are valid, but they
“will continue to exist regardless of the use of ADR.”^209
C. Mediation for Workplace Bullying ClaimsGiven the success of mediation in federal employment
discrimination disputes,^210 this ADR method can also be an
effective solution to workplace bullying because it emphasizes
efficiency and fairness in resolving deeply personal conflicts,
providing Targets closure to a very painful situation. Drs. Gary
and Ruth Namie, renowned researchers of workplace bullying
and authors of several books on the topic, have opposed
mediation as a potential avenue for redress, arguing that there is
an inherent power imbalance between the bully and his Target.^211
Their rejection of mediation, however, overlooks the Target’s
need for a fair and efficient solution. Whereas Targets in
litigation may wait years before their cases are resolved, in
mediation, collaboration between the Target, bully, and
employer can more quickly generate effective solutions. For
example, as part of a settlement agreement, an employer could
agree to discharge the bully and implement an in-house
antibullying grievance procedure. This would simultaneously
provide continued employment for the Target while incentivizing
the employer to prevent future instances of workplace
bullying.^212 Since settlement terms are legally enforceable, if an
(^207) See supra Part IV.A.1.
(^208) See also supra Part IV.B.
(^209) Swendiman, supra note 185, at 404.
(^210) See supra Part IV.B.
(^211) NAMIE & NAMIE, BULLY-FREE WORKPLACE, supra note 43, at 138–
39.
(^212) See Moira Jenkins, Practice Note: Is Mediation Suitable for
Complaints of Workplace Bullying?, 29 CONFLICT RESOL. Q. 25, 28 (2011)
(“As the conflict escalates and one or more parties becomes more aggressive,