2021 Alberstein M Alternative Justice For Sexual Harassment Conflicts - A Tale From A University Campus

Alberstein ALTERNATIVE JUSTICE FOR SEXUAL HARASSMENT
ALTERNATIVE JUSTICE FOR SEXUAL HARASSMENT CONFLICTS: A TALE FROM A

UNIVERSITY CAMPUS
Michal Alberstein*
This article is a first-person account of the combination of law and advanced conflict resolution as it came
forth in the experience of working as a university sexual harassment commissioner (SHC). It offers a
working model grounded in alternative justice principles to deal with sexual harassment and other similar
areas of conflict. The resultant public health and conflict resolution approach has the potential of spreading
to other institutions and other areas of law and society. It fits well in an era of #MeToo, in which women
raise their voices to challenge attitudes, patterns and allegedly “small” and sometimes non-litigable
incidents of harassment, which are part of an organizational culture. Yet the article's main focus is to resolve
conflicts in a way that brings healing to the victim while remaining sensitive to the harasser, taking into
account the wider circle of employees and the characteristics of an academic environment. The working
method of the SHC challenges the traditional functions of law, and includes the use of alternative justice
narratives about the meaning of contemporary law, including responsive regulation and therapeutic
jurisprudence. It is, therefore, a hybrid institution that draws from two worlds – law and conflict resolution
– to crystallize a unique world view tailored to the type of conflict at stake, namely, sexual harassment at
universities, with its unique characteristics and severity: power disparities, hierarchies and diverse
communities.
Contents
I. Introduction .................................................................................................................... ..3
II. Conceptualizing Sexual Harassment Through Alternative Justice Principles............... ..6
A. Process Emphasis .................................................................................................. 7
B. Constructive, Future-Oriented Emphasis .............................................................. 8
C. Deconstruction and Hybridization ......................................................................... 12
D. Focus on the Hidden Layer ................................................................................... 13
E. Relational Emphasis and Emotion Acknowledgement .......................................... 15
F. Bottom-up Emphasis and Community Development ............................................ 19
III. Reconstructing the Sexual Harassment Case: Guidelines ............................................ 23
IV. Between Therapy and Law ........................................................................................... 24
V. Beyond Sexual Harassment ........................................................................................... 25
Electronic copy available at: https://ssrn.com/abstract=3820689

Prologue
The call I received in the afternoon of the holiday eve came from a blocked number. It was not my private
mobile phone but the university's phone which I hold separately that is listed as the "hotline" for sexual
harassment complaints. Its ringing tone, different from the ringing of my regular mobile device, and always
sounding louder to me, penetrated into the depths of consciousness and mobilized the body to respond,
immediately alert to attend a new case, prepared, to listen. On the other side was the shaky voice of a young
woman, speaking quietly and anxiously, polite yet demanding. She spoke about a sexual harassment she
had experienced that morning. She was kissed against her will by a co-worker. She was a young lecturer,
and sounded scared. In the conversation, I tried to convince her to identify herself and to allow me to
continue to handle the case and that nothing would hurt her. She explained that she had just begun this job
a few months before, while he had a lot of power and many years of familiarity with the system. He would
retaliate and she would lose her job. She refused to complain. The conversation ended and, despite my
repeated requests, she did not get back to me.
The next day, following my duty to investigate, I made efforts to locate the academic unit where the case
had occurred. I informed university management that an investigation was under way. I contacted the
human resources department and tried to target appropriate departments that might fit the profile of the
alleged harasser as presented to me on the phone. After a few days, a report on the case arrived through
the young lecturer's adviser. The alleged harasser had chosen to contact him, and he reported to me, the
Sexual Harassment Commissioner, as required by university regulations. I contacted her, and following
her request, retained her anonymity through the entire process. I met with her on the same day and
documented in detail her complaint, which was given with bursts of tears and emotional stress. Immediately
afterwards, I met with the alleged harasser. He was a longtime employee on the verge of retiring from the
university. He was completely devastated and shaken, admitted the act quite at the beginning of the meeting
in my office, after a few words on a "slip of a kiss" and efforts to minimize the incident. He was deeply sorry
about his actions. He said his world was shattered and that he would have preferred to lose a few years of
his life rather than be in this situation. He asked me to express his sincere regret and apology to his co-
worker. Due to the complainant's refusal to be disclosed by her name, no disciplinary procedure by the
university official tribunal was conducted and the employee was reprimanded by his superiors and
transferred to another university unit. After about a month, he did not find his place, and retired in
heartbreak. The complainant returned to routine work and thrived in her department. It was one of dozens
of cases I was responsible for handling as a Sexual Harassment Officer, illustrating the shock that the

harassment event creates for the victim, the attacker and the organization, and the need to combine legal
and therapeutic sensitivity. The case demonstrates the potential of the Sexual Harassment Commissioner
to develop a special form of law that incorporates “alternative justice,” a term which represents a meta
language of conflict resolution, within a creative organizational space.
I. INTRODUCTION
For three years (2015-2018), I was the Sexual Harassment Commissioner (SHC) at a large university
campus.1 This article is a first-person report on my experiences in a position equivalent to a Title IX Officer,
and it reconstructs the role of the SHC in terms of conflict resolution principles, and what I have defined
elsewhere as “alternative justice.”2 The goal of this article is to demonstrate the combination of law and
conflict resolution as it came forth in my work and to conceptualize this hybrid approach, which is based
on conflict resolution principles, as a working model for dealing with sexual harassment and other similar
areas of conflict. Such a public health3 and conflict resolution approach has the potential of spreading to
other institutions and other areas of law and society. It fits well in an era of #MeToo, in which women raise
their voices to challenge attitudes, patterns and allegedly “small” and sometimes non-litigable incidents of
harassment, which are part of an organizational culture.4 Yet the article's main focus is resolving conflicts
 Professor; Primary Investigator, Judicial Conflict Resolution Lab, Faculty of Law, Bar Ilan University (SJD ’00,
Harvard Law School). This research was supported by the European Research Commission (ERC) Consolidator
Grant 647943/14 “Judicial Conflict Resolution (JCR): Examining Hybrids of Non-Adversarial Justice” (2016-
2020).
1
Bar Ilan University, located at Ramat-Gan Israel, has approximately 25,000 students in the Ramat Gan main
campus and the faculty of medicine at the Galilee Safed.
2
Michal Alberstein, ALTERNATIVE JUSTICE: MEDIATION, RESTORATION AND THERAPY THROUGH LEGAL
MECHANISMS (2015) (in Hebrew); Michal Alberstein, The Law of Alternatives: Conflict Resolution as the Art of
Reconstruction, 70 STUD. L. POL. & SOC'Y (2016) 149-180.
3
For the principles of public health as corresponding with alternative approaches to law see Nadav Davidovitch &
Michal Alberstein, Therapeutic Jurisprudence and Public Health: A Broad Perspective on Dialogue, 30 T.
JEFFERSON L. REV. 507 (2008). The public health approach is posited there as following the following principles,
which have relevance for sexual harassment treatment as discussed in this paper as well: (1) an upstream focus
(primary prevention, health promotion), (2) targeting a range of forces (economic, political, and environmental) that
affect populations and cause diseases, and (3) strategically modifying social and environmental variables and
promoting public health via active social and political involvement.
4
Cf. Laura L. Dunn, Addressing Sexual Violence in Higher Education: Ensuring Compliance
with the Clery Act, Title IX and VAWA, 15 GEO. J. GENDER & L. 563 (2014). The article analyzes Title IX case
processing while using examples of severe violence and campus rapes. The article describes sexual violence in
university campus as endemic. The situation is different in Israel where college undergraduate studies are not the
norm, most of students do not live on campus, and they are usually after a few years’ service in IDF, therefore more
mature, many times already partly working to support themselves during their study.

in a way that brings healing to the victim while remaining sensitive to the harasser, and takes into account
the wider circle of employees and the characteristics of an academic environment. This approach does not
directly implement ADR processes into the SHC/ Title IX Officer role,5 yet it uses conflict resolution
principles and borrows ADR practices, while maintaining the unique framework of resolving conflicts in
the shadow of authority.
The position of SHC/Title IX Officer was established in many institutions of higher learning to create a
campus climate that promotes diversity, equity, and inclusion among male and female faculty members,
students, and administrators. As many sexual harassment victims prefer to refrain from formal legal
proceedings (so as to protect their future career prospects and avoid labeling), alternative methods of
resolution are often considered to be more effective in encouraging the reporting of sexual harassment.6
Yet, while the legal track seems inappropriate for encouraging complaints and dealing with them in a
holistic and timely fashion, the role of the SHC has also been criticized for being compromised and of
limited effectiveness.7 It is my hope that the organization of the SHC's role into alternative justice principles,
as presented through examples from my experiences here, will show the high potential of this role to offer
redress, empowerment, and a more equitable organizational culture.8
The working method of the SHC challenges the traditional functions of law,9 and includes the use of
alternative justice narratives about the meaning of contemporary law. It is, therefore, a hybrid institution
that draws from two worlds – law and therapy – to crystallize a unique world view tailored to the type of
5
Cf. Jennie Kihnley, Unraveling the Ivory Fabric: Institutional Obstacles to the Handling of Sexual Harassment
Complaints, L. & SOC. INQUIRY 25.1, 69 (2000). In this paper, the author criticizes the use of ADR in treating
complaints, and discusses the inherent tension that exists between the goal of eliminating harassment and protecting
the institution from a legal claim.
6
Stephanie Riger, Gender Dilemmas in Sexual Harassment Policies and Procedures, 46 AM. PSYCHOL.497 (1991).
7
Id. See also Nancy Chi Cantalupo & William C. Kidder, A Systematic Look at a Serial Problem: Sexual
Harassment of Students by University Faculty, 2018 UTAH L. REV. 671 (2018).
8
For an overview of an equivalent role, see Nancy Chi Cantalupo & William C. Kidder, Systematic Prevention of a
Serial Problem: Sexual Harassment and Bridging Core Concepts of Bakke in the #MeToo Era, 52 U.C.D. L.REV.
2349 (2019) (Though not written from an SHC perspective, the article grapples with modes of responses to sexual
harassment in institutions of higher learning). See also Laurie M. Graham et.al , Interpersonal violence Prevention
and Response on College and University Campuses: Opportunities for Faculty Leadership, 33(188) J. OF FAM.
VIOLENCE 1(2018); Sharon Howard, Organizational Resources for Addressing Sexual Harassment, 69 J. OF
COUNSELING & DEVELOPMENT 507 (1991); Jennifer Cacchio, Title IX and the Constitution: Equal Protection
Violations and Sexual Harassment, 86 UMKC L. REV. 627 (2018).
9
For a critical perspective on the possibility of Title IX affecting actual compliance with sexual harassment norms
by academic institutions, see Grossman, Joanna L. The Culture of Compliance: The Final Triumph of Form over
Substance in Sexual Harassment Law. HARV. WOMEN'S LJ 26, 3 (2003).

conflict at stake, namely, sexual harassment at universities, with its unique characteristics and severity:
power disparities, hierarchies, diverse communities. This unique organizational environment both educates
students and gives great freedom and autonomy to researchers to produce basic science and cutting-edge
groundbreaking innovations. Incorporating these aspects and addressing this unique environment justifies
and requires a holistic solution based on the alternative justice approach that this article develops.
Yet, first, some background on the unique position of the SHC within the organization: The SHC is in a
sense an ombudsperson whose role is to process internal complaints related to sexual harassment submitted
by any member of the university’s communities – students, faculty or administrative staff. Being both an
employee of the organization and a neutral who takes care of complaints that may be leveled against peers
or superiors may create a conflict-of-interest challenge. Indeed, it can be argued that the SHC's dual role
and her internal processing of the conflict at the organization's doorstep lead to the de-politicization of the
conflict, its silencing, and its concealment from the public sphere.10 In practice, in most institutions,
safeguards to preserve independence are embedded within this role. First, the commissioners are tenured,
sometimes even after retirement. Second is the supplementary nature of this role which keeps open civil
and criminal legal public tracks for the claimant to pursue. Third, and in reference to the fear of privatization
in the absence of legal proceedings, cases brought before the SHC are subject to public scrutiny under the
SHC’s reporting obligation; SHCs report on the cases with which they deal annually to university
management, the High Council for Education, and the Parliamentary Committee on the Promotion of
Women's Status. Reports include an anonymous description of the cases while indicating the relevant
communities involved (students, lecturers, or administrative staff). In addition, most of the cases handled
at the university during my term were relatively minor in that they did not exceed the threshold requiring
full legal treatment. Most cases, unlike the one described in the prologue, did not fall within the six specific
forbidden behaviors stipulated by law,11 but rather consisted of relationships gone awry, teasing, derogatory
glances, all of which were context-specific and required nuanced interventions.12 Internal processing of
10
See Felicia Mitchell, Keeping It All in the Family: Sexual Harassment Policies and Informal Resolution in Small
Colleges, NWSA J. 9.2, 118 (1997).
11
The Israeli Law against Sexual Harassment 1998, Section 5. The forbidden behaviors are: indecent assault;
repeated propositions of a sexual nature to a person who has demonstrated not being interested in them; repeated
remarks addressed to a person focusing on that person’s sexuality, when that person has demonstrated to the
harasser not being interested in them; insulting or debasing remarks addressed to a person in relation to that person’s
gender or sexuality; publishing a photograph or a video of a person focusing on that person’s sexuality; and
extorting a person to perform an act of a sexual nature.
12
It is imperative to attend to these breaches of respectful social conduct so that they are not construed as
acceptable, leading to larger breaches. See AE Tenbrunsel & DM Messick, Ethical Fading: The Role of Self-
deception in Unethical Behavior, 17 SOC. JUSTICE RES. 223 (2004). See also F. Gino & MH. Bazerman, When

such cases may be the most responsive approach that can be offered to the complainants, and the approach
is reinforced by their explicit request, in most cases, to limit the SHC's treatment to a specific and discreet
response. In severe cases, a disciplinary committee may waive anonymity. The SHC role is therefore an
instrument to promote a pro-social organizational culture and describe it in terms of the organizing
narratives of the field of conflict resolution – what I define as the alternative justice principles.13 These
principles, as set out here in reference to the SHC role, will enable to capture its location between therapy
and law and among relevant alternatives to law such as mediation,14 therapeutic jurisprudence,15 restorative
justice,16 and procedural justice.17
II. CONCEPTUALIZING SEXUAL HARASSMENT THROUGH ALTERNATIVE JUSTICE PRINCIPLES

Dealing with sexual harassment requires a unique set of rules and institutions, which differ from the
common legal practice of implementing legal rules. Unlike many forms of law enforcement, which use a
method of command and control, this area of human conduct requires special tools to bring about the law's
intent to affect society in a proactive way and to transform cultural norms. In contrast to perspectives which
portray this role as applying feminist critique and as trading the megaphone for the gavel in university
campuses, 18 I perceive the feminist spirit as inspiring yet as only an example for a social movement of
critique and reconstruction of cultural norms. In the realm of campus sexual harassment, I emphasize human
dignity for all while promoting a respectful culture as shared by all members of the university community.
Such an effort combines prevention and education mechanisms with care and supervision. In the event of
a violation of sexual harassment norms, the role of the law in this advanced form is to change organizational
culture and to reshape consciousness. This is a far-reaching role, which takes human nature into account
Misconduct Goes Unnoticed: The Acceptability of Gradual Erosion in Others’ Unethical Behavior, J. EXP. SOC.
PSYCHOL.45, 708–19 (2009).
13
Alberstein, supra note 2.
14
Michal Alberstein, Forms of Mediation and Law: Cultures of Dispute Resolution,
22 OHIO ST. J. ON DISP. RESOL. 321 (2007).
15
David Wexler, Therapeutic Jurisprudence: An Overview, 17 T. M. COOLEY L. REV. 125 (2000).
16
Daniel W. Van Ness & Karen Heetderks Strong, RESTORING JUSTICE: AN INTRODUCTION TO RESTORATIVE
JUSTICE (2014).
17
Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181 (2004).
18
See Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128 HARV.L. REV. F. 103
(2014-2015) Furthermore, sexual harassment crosses gender boundaries, and some institutions have mail SHCs as
well. For an empirical overview of sexual harassment Title IX treatment and litigation, see Nancy Chi Cantalupo &
William C. Kidder, Mapping the Title IX Iceberg: Sexual Harassment (Mostly) in Graduate School by College
Faculty, 66 J. LEGAL EDUC. 850 (2017).

more seriously than do other legal enforcement mechanisms. It suggests a more realistic view of the
encounter of innovative norms with social reality. Thus, the complex system of regulation and rules of
conduct that has developed within the university was perceived by me to be more delicate than regular law
enforcement. This role can be viewed as belonging to the family of alternative legal procedures and based
on organizing narratives described as alternative justice: conflict resolution principles aiming to change
social reality while incorporating critical interventional narratives that help to reconstruct social reality.
These narratives were inspired by critical schools that developed in the twentieth century and found the
traditional legal system wanting in terms of addressing the needs of the parties and society as a whole.19
Alternative justice is based on six internal principles, which form a common thread among the various
alternative legal reform movements (e.g., therapeutic jurisprudence and restorative and transitional
justice).20 These principles encapsulate the empowering possibilities of alternative justice21 and are based
on my extensive experience in teaching, practicing, and studying alternatives. Below I will outline these
principles, while explaining their relevance for the SHC's role. I will include examples from my own
experience to demonstrate the way in which using these principles helps to reconstruct sexual harassment
and to promote a new concept of a conflict resolution-public health perspective of law.
A. Process Emphasis
The first principle that virtually all alternative movements share in common is a pragmatic commitment to
process as a means of overcoming and evading substantive conflict. In the face of moral difference,
alternatives aspire to enable shared decision-making by offering a set of procedural ideals that all parties
can agree to embrace regardless of their ideological orientation, class position, or substantive disagreement.
This emphasis on process is sometimes described as the “second negotiation.”22 As Roger Fisher and
William Ury explained it, negotiating the process by which the parties should decide the case results in a
19
Alberstein, The Law of Alternatives, supra note 2.
20
Michal Alberstein, ADR and Transitional Justice as Reconstructing the Rule of Law, J. DISP. RESOL. 127, 130–42
(2011).
21
See, e.g., Mariana Hernandez Crespo, Building the Latin America We Want: Supplementing Representative
Democracies with Consensus-Building, 10 CARDOZO J. CONFLICT RESOL. 425 (2009); Nancy D. Erbe, Appreciating
Mediation’s Global Role in Promoting Good Governance, 11 HARV. NEGOT. L. REV. 355 (2006); Michael Hamilton
& Dominic Bryan, Deepening Democracy? Dispute System Design and the Mediation of Contested Parades in
Northern Ireland, 22 OHIO ST. J. ON DISP. RESOL. 133 (2006); Carrie Menkel-Meadow, The Lawyer's Role(s) in
Deliberative Democracy, 5 NEV. L.J. 347, 348–49 (2004); Jeffrey R. Seul, Settling Significant Cases, 79 WASH. L.
REV. 881 (2004); Lawrence E. Susskind, Keynote Address: Consensus Building, Public Dispute Resolution, and
Social Justice, 35 FORDHAM URB. L.J. 185, 190–91 (2008); Alex Wellington, Taking Codes of Ethics Seriously:
Alternative Dispute Resolution and Reconstitutive Liberalism, 12 CAN. J.L. & JURIS. 297 (1999).
22
See Roger Fisher & William Ury, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN, 10 (Bruce
Patton, ed., 1983).

principle-based negotiation that can be framed as a shared problem-solving activity. 23 In fact, for many
scholars of alternatives, reaching the correct decision about process – what is commonly called “procedural
justice” – often matters more than substantive outcomes.24 Parties that participate in alternative legal
movements are therefore encouraged to defer judgment on specific substantive questions. The idea is that
through the actual experience of participating in a structured process, individuals are more likely to integrate
their differences and multiple interests while transforming and reconstructing their conflicts.
The “process emphasis” principle is very much relevant to the work of the SHC. In my experience, each
case required its own process design, and many times building the right process was the key to constructive
change. The formal role of the SHC is to investigate a complaint, and to decide whether to refer the case to
the disciplining committee or to dismiss it if it is unfounded. In reality, the process, which is built while
listening to the claimant and planning the investigation, may provide an answer and a treatment of the case,
without the need for further hearings and with no dismissals or pure rejections. Listening to the concerns
of the claimants and providing them a safe space to tell their story is an important process that has its own
inherent value in processing the case.
For example, a case that involves serial harassments would require interviews of several students and
faculty, most often using a snowball method, until saturation of the factual situation is reached. On the other
hand, a case of a personal relationship that took a wrong turn may involve a reluctant complainant, who
does not agree to expand the circle of interviewees and is interested in preserving her anonymity.
Investigation will be more limited in such a case. Sometimes clarifying the boundaries to the other person
is enough. In other cases, campus security forces must be recruited to ensure the safety of the complainant.
The SHC's role is to design the most appropriate solution, tailored to the specific dimensions and context
of the conflict. Many times the right design is also the solution to the problem.
B. Constructive, Future-Oriented Emphasis

The second related principle alternative justice is constructive, future-oriented intervention. Rather than
encourage disputants simply to adjudicate the rightness or wrongness of their claims through the application
23
Id. In their words: “The second negotiation concerns how you will negotiate the substantive question: by soft
positional bargaining, by hard positional bargaining, or by some other method. This second negotiation is a game
about a game — a ‘meta game.’”
24
For an overview of procedural justice, see generally E. Allan Lind & Tom R. Tyler, THE SOCIAL PSYCHOLOGY OF
PROCEDURAL JUSTICE (1988). For an exploration of the relevance of this notion for mediation and negotiation, see
generally Nancy A. Welsh, Making Deals in Court-Connected Mediation: What's Justice Got to Do With It?, 79
WASH. U. L.Q. 787 (2001); Rebecca Hollander-Blumoff & Tom R. Tyler, Procedural Justice in Negotiation:
Procedural Fairness, Outcome Acceptance, and Integrative Potential, 33 LAW & SOC. INQUIRY 473 (2008).

of fixed legal rules retrospectively, alternatives aim to cultivate open-ended processes that present conflict
as an opportunity for growth, creativity, and change and thus prioritize future-oriented normative
arguments. This orientation equally discourages truth claims and nihilism: Instead, it asks people how they
think they ought to arrange their affairs and solve their problems going forward, and it encourages them to
jointly construct their own willful picture of reality.25
In accordance with this principle, the SHC’s activities are also directed at empowerment, transformation
and improving the organization. The expectation according to the law and relevant regulations is for a
restorative response aimed at repairing the injury to the complainant; and the assumption is that employees
who receive appropriate training will positively internalize the respectful culture underpinning the law.
Despite the difficulty of experiencing harassment and its negative aspects, it is possible to grow and learn
from the conflict created and to try to prevent similar injuries in the future. This is an overlooked aspect in
the traditional legal handling of a case (in which therapeutic aspects are not ingrained). In addition, the
importance of handling even small rumors and minor incidents enables to learn from them and prevent
more severe cases. Trying to improve a victim's situation and to possibly give a harasser an educational or
at least preventative lesson is different from the usual way the trial works. In accordance with this principle,
during the course of a complaint, I try to empower the complainant, praise her for referral and reassure her
that, even if it is now difficult, going through the process will take her to a different and stronger place, and
especially will help other possible victims. I often try to learn from her how the case can improve her
condition and consult her on how to do this, together with informing her about the status of the case. It is
of great importance to strengthen the complainant's sense of power, mirror her feelings and actively listen
to her, alongside the essential clarification of the complaint – gathering evidence, documentation, and
receiving the complainant's signature on the written complaint.
In addition to trying to help the complainant, in cases where the parties still care for each other I encourage
and strengthen mutual respect, even if mediation or restorative justice are impossible. The respondent
described at the beginning of this article at first denied the injury and said that he gave a "kiss that slipped"
and did not impose it on the complainant. In his second sentence, he spoke highly of the complainant as a
25
For a few examples, see, e.g., Douglas Stone et al., supra note 69. (providing guidelines to transform disputes
grounded in facts, emotions, and identities into constructive conversations); Carrie J. Menkel-Meadow et al., DISPUTE
RESOLUTION: BEYOND THE ADVERSARIAL MODEL 12–20 (2005) (presenting excerpts on constructive conflict
resolution that challenge adversarial win/lose models); Carrie Menkel-Meadow, Mothers and Fathers of Invention:
The Intellectual Founders of ADR, 16 OHIO ST. J. ON DISP. RESOL. 1, 6–10 (2000) (presenting constructive and creative
notions of conflict as one of the core ideas that inspired the development of the ADR movement); Bush & Folger,
supra note Error! Bookmark not defined., at 81–112 (theorizing conflict as a positive opportunity for new moral
growth).

genuine, smart and virtuous woman, whom he appreciates, and said that his heart breaks for hurting her.
He further asked me to convey his apology. I conveyed this message to the complainant separately and
emphasized this constructive gesture. I perceive this role as enabling me to strengthen humanity in
relationships even if at the moment the complainant will not forgive him and he will need to pay for his
actions. In the same case, the complainant said that she had been hurt by the harasser but was still worried
about his future and did not want him to be harmed. I take these kind of claims as a positive sign of strength,
and emphasize this intention as positive and not as self-evasive. She can demand justice and still care for
the harasser and conflict resolution language can contain such ambivalence. Many complainants, while
showing courage and inner strength, choose to still care for the harassers, and this complexity can reflect
humanity and grace. The trial tends to simplify claims and ambivalent situations, while the SHC's role in
exercising ethics of care is to contain this complexity and to emphasize its positive aspects. These voices
are also usually highlighted in the summary letter which is long, detailed, and includes an analysis of the
case with all its layers and aspects.
Focusing on the future includes targeting prevention and requires an understanding of the broad context of
the problem, while addressing other conflicts that may be associated with the particular incident. This
upstream approach illustrates the public health perspective embedded in this role.26 In the wider context,
preventing future incidents of harassment in an organization includes information gathering, educational
activities, including mandatory learning software for all campus community members, publishing and
advising on complaints, as well as actively investigating rumors and anonymous complaints.27
The presumption of the law and the university regulations on this matter is that the employer should not
wait for the complaint to reach the SHC, but that the SHC and other agents at the university are those
responsible for actively investigating anonymous complaints and rumors. The SHC must address inquiries
from employees, students or other stakeholders who wish to bring to her notice unofficial allegations
attributed to others, or rumors regarding themselves that they allegedly sexually harassed. In such cases, it
is important for the SHC to understand the facts behind the rumor. One of the cases that came to me was
that of a lecturer who reported a rumor, stemming from one of his subordinates, which he claimed was a
false accusation of sexually harassment. After documenting the course of events, as described by the
26
For an elaboration on the intersection of public health and law in the field of health care conflicts see Michal
Alberstein & Nadav Davidovitch, Intersecting Professions: A Public Health Perspective on Law to Address Health
Care Conflicts, 83 INT'L J. CONFLICT ENGAGEMENT AND RESOLUTION 2017 (5) 1-2.
27
For outlining a multilayered approach for sexual harassment investigations and teaching see Jordan TL Halgas,
Don't Try This at Home: Using a Multilayered Approach to Teach the Law of Sexual Harassment and Sexual
Harassment Investigations, J. LEGAL STUD. EDUC. 23 (2006), 217.

lecturer, and gathering written evidence from other colleagues and students, including the assumed victim,
I concluded that there was no foundation for harassment in that case. Yet I saved the materials in case a
formal complaint was filed against the lecturer or the rumor would be circulated again in the future. In
another case, the head of a university unit asked to meet me and was concerned following a rumor that an
intimate relationship was occurring between a senior faculty member and a subordinate faculty member.
She was afraid that the subordinate would be exploited due to her professional dependence on her
supervisor. It turned out that the rumor that was being circulated among the faculty members regarding the
alleged harassment resulted in exclusion and hostility towards the senior professor. After investigating this
case, and talking to the subordinate it turned out that no intimate relationship had been established and no
exploitation was at stake. The student vehemently denied the possibility of being sexually harassed by her
supervisor and was upset by the rumor that was in her view unjust towards the professor, and to her as well.
A notice to the head of the department was sent, clarifying the need to stop the informal sanctions among
the faculty against the professor. Processing this case helped mitigate the risk of resurfacing of claims by
the staff against the professor at a later stage, and also helped avoid future allegations by the professor that
he was falsely accused and excluded by his colleagues.
A special preventive upstream activity, unique to the SHC's role, is the duty of employees to report to the
SHC if they begin a romantic relationship. The employees sign an affidavit before the SHC stating that they
fully consent to this relationship and that it will not interfere with their work. This duty is intensified where
there is a subordinate relationship and the employer is required to take care of appropriate segregation and
prevent future complaints (including those of employees who may feel discriminated against due to this
new relationship) about exploitation of the relationship in the work environment. In such cases of
subordination, a separate and early meeting with the subordinate employee is conducted to ensure that
consent in the relationship is indeed informed and there is no implicit coercion. A result of this preventive
duty is that a lecturer who has not reported a sexual relationship with a student will have difficulties in
denying the student's claim of exploitation later. The duty to report is recognized as a necessary means to
ensure informed consent and the institution's involvement in assessing the risks arising from the connection.
One of the precautionary measures taken by me in this context was the distribution of a letter to all
academic, administrative, and student staff, where the main legal tenets regarding sexual harassment
prevention law were introduced and the obligation to report intimate relationships when they begin to
develop was explicitly mentioned. Another initiative taken by me as the SHC was a recommendation to
change the senate regulation on sexual harassment, so that it explicitly acknowledges the suspicious nature
of intimate relationships involving subordinates, especially between faculty and students, and requires the
reporting to the SHC in advance – otherwise harassment will be a presumed in such cases.

C. Deconstruction and Hybridization

Facilitators of alternatives encourage disputants to deconstruct an “all-or-nothing” or “win-lose” legal
framework into a multiple array of smaller more manageable problems, interests, choices, preferences and
desires.28 These problems, in turn, become partly resolvable through hybridization – that is, a creative
strategy for practical bargaining and compromise in which parties agree to make incremental and piecemeal
trades across multiple divergent interests and desires.29 Setting an agenda and prioritizing among the various
issues is also crucial for transforming and reconciling conflicts through addressing their polycentric nature.
Contrary to legal interventions, which usually simplify complex situations into sharp questions about the
applicability of norms and its consequences, the SHC's role seems to assume complexity within the
regulatory framework of sexual harassment treatment. Taking Frank Sander's vision of "fitting the forum
to the fuss"30 to its most individualized form, a tailor-made, flexible process must match the relevant
circumstances of the case. The SHC handles a variety of situations which requires different handling: cases
where the complainant withdraws her claim; situations where the complaint is anonymous; when the
threshold of sexual harassment is not met; when there are only rumors and there is no complaint. The SHC
is authorized to formulate recommendations even when it is concluded that there has been no sexual
harassment in the terms of the law; she diversifies her responses according to the stakeholders and writes
full summary letters to the superiors, and other letters are customized to the complainant and respondent.
Her work within the organization is with various stakeholders, and she can speak in different voices to each
one of them, unlike judges. Her role always requires flexibility and maneuverability. This complexity is
therefore built into the job requirements. In most cases, the SHC's activities include cooperation with
28
Robert Axelrod’s game-theoretic work on the Prisoner’s Dilemma provides the basis for a famous deconstruction
of this sort. He assumes a recurring, rather than one-SHCt, Prisoner’s Dilemma, which enables each player to engage
in a series of discrete, small responses to her opponent’s choices. Axelrod then proceeds to SHCw how particular
kinds of responses can develop rational incentives for collaboration over the course of the longer game. Robert
Axelrod, THE EVOLUTION OF COOPERATION 27–54 (1984). Drawing on Axelrod, theorists of alternatives likewise
describe the act of negotiating conflict not as a one-SHCt deal but rather as a series of choices or stages where parties
can make small decisions to enable a growing sense of trust and collaboration. See, e.g., David A. Lax & James K.
Sebenius, THE MANAGER AS NEGOTIATOR: BARGAINING FOR COOPERATION AND COMPETITIVE GAIN 160 (1986)
(using Axelrod’s research to propose dividing the negotiation “process into a number of small steps”). See also Roger
Fisher, Fractionating Conflict, 93 DAEDALUS 920, 921 (1964) (similarly proposing a number of practical advantages
for conflict resolution when major conflicts are treated as “a number of small ones”).
29
For a few examples, see Fisher & Ury, supra note 22, at 73–79 (describing how to use shared and differing interests
to “invent options for mutual gain”); David A. Lax & James K. Sebenius, supra note 28, at 88–116 (offering lessons
in “trading on difference”); Robert H. Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals and
Disputes 12–15, 28–43 (2000) (offering lessons in how to identify the multiple issues comprising a problem and to
leverage differing issues into value creating trades).
30
Frank E. A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an
ADR Procedure, 10 NEGOT. J. 49 (1994).

various university entities and interdisciplinary consultations – with lawyers, criminologists, psychologists,
and social workers. It also entails ongoing communication with security personnel and the administration
units in situations of risk or when assistance is needed with the investigation process. Handling cases of
serious and dangerous harassment is accompanied by cooperation with campus security officials, issuing
immediate restraining orders, closing gates, repairing and changing entryways to a specific campus area. In
all these activities, collaboration and coordination among different sections and tools is required. The
organizational flexibility which the SHC can utilize and navigate when conducting her role is unique and
enables the fast and effective problem solving needed in many harassment cases, and which cannot be
offered by legal institutions or a discipline committee.
D. Focus on the Hidden Layer

Fulfilling the role of the SHC involves developing a needs discourse that tries to go underneath the surface
of the official claims brought by the parties. This hidden layer is variously described by theorists and
practitioners of alternative justice as interests, needs, or narratives of entitlement. While on the surface,
conflict is antagonistic and distributive (focusing on positions), parties who can deconstruct and self-
identify the hidden layer underlying their conflict (their interests) can reframe their disputes in ways that
are more constructive. For example, if parties can express the putative interests and needs that are driving
their positions, they can both create and expand the benefits of trade. They can realize that many interests
overlap. Likewise, if parties can articulate and critically interrogate their own desires and narratives of self-
entitlement – what they want and why they want and think they deserve it – they are more likely to explain
and/or modify their positions in ways that make their motivations appear more persuasive and equitable to
others. Ideally, through these dialogic exercises of explanation, rationalization, and change, parties develop
common understandings of reason that inform how they will resolve their disputes.31
For the SHC, this involves listening to what matters to all the relevant stakeholders, especially the
complainant, and to inquire about what will make her feel safe again. In addition, addressing the needs of
the organization is also important. For example, a complainant who does not want to reveal her identity,
but raises concerns about other possible victims, requires working with a harasser sometimes anonymously,
sometimes collectively within the entire group of the university department to which the harasser belongs,
in order not to reveal the identity of the complainant. Avoiding future harassments, including future claims
31
For examples, see Fisher & Ury, supra note 22, at 41–57; John Winslade & Gerald Monk, NARRATIVE MEDIATION:
A NEW APPROACH TO CONFLICT RESOLUTION 94–115 (2000) (chapter on needs and entitlements and “how narrative
mediation can be used to deconstruct entitlements in an attempt to assist people to build more equitable relations when
conflict is being addressed”); Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of
Problem Solving, 31 UCLA L. REV. 754, 801–17 (1984) (sections on “identifying the parties’ underlying needs and
objectives” and “creating solutions”).

by potential victims, including the current one, who can later claim that she was not properly protected by
the university, requires delicate needs-balancing by the SHC. The shared interest of all campus members in
nurturing a safe and respectful culture in the university campus and community is emphasized during SHC
meetings.
Addressing the needs of victims of sexual assault in general and of sexual harassment in particular, requires
very keen listening. Findings from the field indicate that many victims do not want revenge or to initiate
legal proceedings. The main need reported by the victims is the recognition of the occurrence of sexual
harassment not only (though especially) by the offender but also by the immediate environment, including
the institutional setting.32 The recent #MeToo campaign that flooded the media demonstrates how deep is
this silenced vulnerability of victims who were not listened to for years. Yet addressing the needs they
express does not always involve public condemnation, punishment or collective shame. The victim is often
interested in recognition, security and prevention of injury to others. She wants to understand why the
wrong was done to her, to receive an apology and to heal. The process of handling sexual harassment
complaints is aimed at addressing the complexity of complainants' needs and at preventing the secondary
injury entailed in waiving anonymity and exposing the victim to social media or courts. Many of the
complainants I met expressed, on the one hand, the need to expose the harm and acknowledge it, and on
the other, the need to step out of the victim position, not to be publicly labeled as such, and to go on with
their life – to continue on their academic path without being labeled as victims or publicly disclosing the
violation. Settling the conflict in an alternative way in cases of sexual harassment within an institution of
higher education enables a safe response to the complainant's needs without a lengthy, protracted process
that may not respond to the needs of the complainant. As a result of the SHC's needs assessment, the
complainant has a wide range of freedom to choose how her needs are met – from anonymity to a meeting
with the respondent in order to clarify the event, receive recognition or maybe receive an apology, or to
rehabilitate the relationship to some extent in another way. She is always free to pursue other more public
paths of expressing herself and to pursue legal proceedings, whether civil or criminal, yet usually there is
no such interest. In most cases complainants even avoided pursuing the disciplinary complaint stage of
conducting a confidential hearing before the university tribunal.
At the same time, the needs of the respondent should be addressed by the SHC, first by protecting his right
to answer claims and to refute them. False accusations, even if rare, can be very harmful and destroy the
reputation of a person, including his chances for a career. The role of the SHC is to clarify the facts and in
32
For analyzing victims’ needs and the way to balance them within the processing of sexual harassment cases, see
Susan K. Hippensteele, Mediation Ideology: Navigating Space from Myth to Reality in Sexual Harassment Dispute
Resolution, 15 AM. U. J. GENDER Soc. POL'y & L. 43 (2006).

relevant cases to refute false rumors, as in the case mentioned above. In other cases, the structured nature
of the findings of the SHC and her concrete conclusions and recommendations help to promote clarity and
closure for the respondent as well. Many respondents often perceive themselves as being harmed by the
process and are upset about going through interrogation, which is in most of the cases, their first one. When
this happens, I explain that they have a strong interest in processing the complaint and clearing their name
in case it is a baseless rumor. Potential respondents may even be considered as legally entitled to protect
their reputation by the employer who has the duty to investigate sexual harassment allegations and clear
rumors which may affect their future career in other work places. Even in the case of low-level harassment,
clarifying and delineating what has happened, including responding and tracking future behavior, helps to
prevent more serious incidents and allows the respondent to deal with self-injurious behavior patterns. Thus,
they may avoid more serious future injuries or the escalation of the current case, for example through
transfer to the social media, in a way that can have devastating consequences for all involved parties.
Other relevant needs of the respondent are associated with injury and mental breakdown which the
procedure may cause. Many respondents are normative people and perceive themselves as law-abiding and
moral citizens of the university and their communities. The note on the complaint many time shakes their
life. Some describe lack of sleep after getting the call, and a shattered reality. There is a concern that they
will hurt themselves and a social worker may be called upon to help them, or they may be referred to
treatment to cope with the process. Thus my first call to them was almost always conducted within the same
day that I offered to meet them, to show empathy and respect during the meeting, as well as provide them
room to express their pain. During this meeting, I would also clarify the obvious boundaries between victim
and offender, and emphasize that expressing empathy and relationship building is built on a clear
expectation for accountability and responsibility taking by the offender. Mirroring and validating
respondents' personal emotions and needs can go together with condemning the act of harassing. Another
aspect of acknowledging interests of possible respondents was identifying and naming senses of persecution
by male professors and students, concerned by being framed and falsely accused by women. Such concerns
were expressed in public seminars and lectures, and were acknowledged while trying to set the boundaries
and showing the shared interest in transforming the organizational culture.
E. Relational Emphasis and Emotion Acknowledgement

The fifth principle of alternative justice is the acknowledgment of emotions and simultaneously emphasis
on relationship. Alternative justice offers a reconstructed vision of the juridical subject that emphasizes the

relational aspects of disputes.33 This is in large part facilitated by acknowledging emotions. The idea is
that emotions have a logic of their own; when they are acknowledged and expressed, disputants understand
the conflict differently and become better able to jointly focus their energy on the problem, not the people.34
By acknowledging emotions as a significant element in human disputes, parties are taught to understand
themselves as less individualistic, less separated, less rule-bound and more caring and empathic.35
After identifying their emotions, and being encouraged to reframe legal disputes as, in part, reflections of
the complex affective dynamics and feelings that occur in the interstices of social relations, disputants are
simultaneously (if somewhat paradoxically) encouraged to depersonalize their differences – “to separate
the people from the problem” – as Fisher and Ury define it. Disputants are encouraged to transform
themselves from agonistic individuals to joint problem-solving units tasked with generating common
proposals for conflict resolution.36 The relational perspective further expands this idea of mutual respect
and interdependence into a self-in-relationship perspective in which response-ability is formulated through
being connected to the other as a foundational experience.37
Focusing on relationships places the SHC in her most challenging task. The role of the SHC is to improve
relationships and many times, while dealing with a case, she exposes an offensive pattern. Her deep
challenge then is to transform it, to uncover the hierarchical order that drives it, to de-stabilize it and to
prevent its recurrence. Respondents who attend a hearing, which is conducted relatively informally and in
the context of a conversation, often reveal the problematic relationship pattern that characterizes their
communication. The conversation with them is direct and not mediated by lawyers or prior preparation.
They may shout, tell offensive jokes about women, enchant and impress or even verbally attack or express
33
See, e.g., Deborah M. Kolb, The Love for Three Oranges Or: What Did We Miss About Ms. Follett in the Library?
11 NEGOT. J. 339, 344 (1995) (arguing that “a significant component of the negotiation process is the creation of a
frame of connectedness within which negotiations can take place”).
34
Fisher & Ury, supra note 22, at 56. For examples, see Roger Fisher & Daniel Shapiro, BEYOND REASON: USING
EMOTIONS AS YOU NEGOTIATE 15 (2005); Stone et al., supra note Error! Bookmark not defined., at 85–108 (chapter
on emotions: “Have Your Feelings (Or They Will Have You)”; Daniel L. Shapiro, Emotions in Negotiation: Peril or
Promise? 87 MARQ. L. REV. 737 (2004); Daniel. L. Shapiro, Negotiating Emotions, 20 CONFLICT RESOL. Q. 67 (2002).
35
As Mary Parker -Follet, one of the founders of the ADR movement suggests: “The conception of circular
behavior throws much light on conflict, for I now realize I can never fight you, I am always fighting you plus me. I
have put it this way: that response is always to a relation. I respond, not only to you, but to the relation between you
and me….I never react to you, but to you-plus-me; or to be more accurate, it is I-plus-you reacting to you-plus-me…
That is in the very process of meeting we become something different….Through circular response we are creating
each other all the time” in Kolb, supra note 31.
36
To achieve this end, Fisher and Ury, for example, suggest that parties jointly adopt principled problem-solving
criteria as a depersonalized choice-making procedure. FISHER & URY, supra note 22, at 84–98.
37
Carol Gilligan, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT (1982).

their gender bias. In some cases, even with the SHC, they re-enact the problematic relationship pattern that
is the background of the complaint. Here lies the special value of the role of the SHC, which goes beyond
the way a judge would handle the complaint of harassment: The judge will hear the parties, examine the
prohibited conduct displayed, diagnose the situation and apply the law to it. She will narrow down the
relationship and reduce it to concrete events which can be legally assessed. Relationship analysis will
sometimes help as a background to these decisions, yet its role is marginal. In contrast, the SHC focuses on
relationships, and although her work entails examination and evaluation of concrete behaviors, a central
focus of her work is diagnosing the problematic patterns of relationships and how to improve them. Without
doing so, a comprehensive solution cannot be found and more cases may occur. The respondent is always
first asked how he felt in the work environment and if he knew why he was summoned. Sometimes the
hypotheses he provides give me new information about the complaint and this in itself requires care. Many
times it helps to reform the pattern of relationships that he tends to develop. A lecturer who has received
anonymous complaints in student evaluations, claiming that he conducts abusive and blunt behavior, may
enter my office angry and screaming. He acts himself, and this pattern of behavior that he demonstrates, is
mentioned in detail in my summary letter and is addressed explicitly. Sometimes addressing such a pattern
requires micro-teaching, providing him with a coach. This may be true even if the legal threshold of sexual
harassment was not met.
The handling of the complaint, therefore, ideally should lead to a significant improvement in workplace
relationships. Each complaint has a follow-up to the complainant and the respondent and there is an attempt
to examine and ascertain the healing and rehabilitation of both parties. Full reconciliation and direct
encounters are usually not possible and often not desirable because the injury is still imminent and painful,
but a process of study and empowerment that will improve the pattern of relationships in the future and will
help to avoid risks is part of the SHC's goals as I perceive them.
However, despite the focus on relationships, my starting point in performing the role is that a direct meeting
between the complainant and the respondent is not desirable. The complaint often reflects a violation of
interpersonal boundaries that I must re-draw and clarify on behalf of the institution. A student or a
subordinate sometimes submits a complaint due to the impossibility of communicating directly with the
respondent to change the offensive communication pattern. The help they ask for is many times in drawing
the lines. At times, as noted above, the SHC offers complainants restorative practices, such as transmitting
an offender's message of regret, and I have frequently suggested to refer the parties to an external restorative

justice facilitator in case they were interested in the full process.38 Yet no complainant has ever chosen this
channel. A confrontation with offender as often imperative in a criminal trial is not necessary when
processing a sexual harassment allegation, and it may re-traumatize the victim. In this aspect, the SHC's
role differs from mediation, restorative justice and the traditional legal process.
Therefore the role of the SHC is mainly to separate and protect the complainant in situations in which the
delicate tissue of relationship was torn. The administrative nature of the role and the low threshold of cases,
including the relatively simple facts that usually characterize university sexual harassment claims, allows
flexibility in this context and contributes to the speedy handling of complaints using the authority to clarify
the relationship rather than to amend it or to decide about legal issues.
The focus, then, on patterns of relationships allows me to deal with cases which, after clarification, do not
fall under any category of sexual harassment as defined by law. Yet they can reflect a violation and pose a
threat on campus. For example, in one instance I was asked to inquire about a rumor that an unknown
professor had an offensive attitude towards students. Tracing the identity of the professor and clarifying the
pattern of his attitude through conversations with the students led me to conclude that his behavior was rude
both towards academic staff and students, yet did not fall within the formal boundaries of sexual harassment.
Comments in the classroom were sometimes gender-biased or offensive as was his attitude toward female
students. I summoned the lecturer and explained to him the problematic pattern of his relationship with
colleagues and especially with students. Following the intervention, heads of departments and deans were
notified of the need to carefully read student evaluations and trace allegations of sexual harassment or
disrespectful behavior by lecturers. Such an approach helps to trace behaviors which can later develop to
harassment and to prevent and deter offensive behavior.
In another case, after conducting an in-depth inquiry into a student's complaint about abusive gender
statements made by a lecturer during class, I concluded that the statements were of a gender-biased nature,
but fell under the lower bar of behaviors prohibited by sexual harassment law. Nevertheless, following the
approval of the rector, I instructed the unit head to talk to the lecturer and to require him to keep at a proper
distance from students, including explicit instructions to avoid any physical contact with them, to avoid
comments invading their private space, and to stop telling offensive jokes in the classroom. The lecturer
was required to maintain a respectful professional attitude while maintaining equality and respect for all
genders and sectors. In another case, which included profane statements of a lecturer against a former
38
For an overview of the regulative foundation of implementing restorative justice in campus sexual harassment
cases, Mary P. Koss, Jay K. Wilgus, & Kaaren M. Williamsen, Campus Sexual Misconduct: Restorative Justice
Approaches to Enhance Compliance with Title IX Guidance, TRAUMA, VIOLENCE, & ABUSE 15.3, 242 (2014).

student, it was determined that this was sexual harassment at a low level, and it was decided, after consulting
the rector, that the head of the department should discuss the case with the lecturer and reprimand him.
These instances of setting clear boundaries of respectful relationship help to transform organizational
culture and clarify behavioral norms while nourishing an environment that is safer for students and
employees.
F. Bottom-up Emphasis and Community Development

The sixth and last principle of alternative justice is bottom-up emphasis and community development.
Dispute resolution movements share a "grass roots" emphasis of working from the bottom up without yet
knowing the complete plan or the preferred outcome that should be achieved. The emphasis on
empowerment through encouraging pluralistic perceptions and trying to integrate diverse perspectives into
a more effective practice is what unites these movements and differentiates them from mainly top-down
projects of reform and transformation.39 The non-authoritative quality of conflict resolution models is
related to the development of a regime without rigid rules, based on relationship and mutual respect. Formal
prescriptions, including legal rules, become marginal within the common search for understanding and
reaching working guidelines that can be revised and replaced when there is a need from the ground to do
so. Working with the parties and helping them to craft their own rules is an important role of mediators,
and designing systems of dispute resolution is also conducted following a deep inquiry into the interests of
the various stakeholders of organizations.40
In the context of dealing with sexual harassment, one of the highlights of the SHC's work is bottom-up
empowerment: giving voice to the complainant's distress and listening to her, examining her needs,
involving her in the process as much as possible in terms of information on the harasser's development,
respecting her preferences and addressing her concerns. The complainant often comes with a feeling of
helplessness, seeking remedy and a response, and the role of the procedure is to strengthen her throughout
her appeal to regain a sense of control. I always perceive the complainant as the one who knows best what
39
A famous “father” of modern mediation, Lon Fuller presented its anti-authoritarian quality by declaring that:
"The central quality of mediation [is] its capacity to reorient the parties toward each other, not by imposing rules on
them, but by helping them to achieve a new and shared perception of their relationship, a perception that will
redirect their attitudes and dispositions toward one another. This quality of mediation becomes most visible when
the proper function of the mediator turns out to be, not that of inducing the parties to accept formal rules for the
governance of their future relations but of helping them to free themselves from the encumbrance of rules and of
accepting, instead, a relationship of mutual respect, trust and understanding that will enable them to meet shared
contingencies without the aid of formal prescriptions." Lon L.Fuller, Mediation – Its Forms and Functions, 44 S.
CAL. L. REV. (1971). 305.
40
Stephanie Smith & Janet Martinez, An Analytic Framework for Dispute Systems Design, HARV. NEGOT. L.
REV. 14, 123 (2009).

happened and what will help her recover. She, rather than the respondent or a third party will define her
injury, and eventually the process should enable her to free herself from perceiving herself as a victim and
help her to return to routine professional functioning at the university. Accordingly, when I realized that
sexual harassment allegations were made by an abusive or zealous husband who wanted to use the
institution to control his wife, I dismissed the claim as unfounded. This was after it was made clear to me
in a separate and honest conversation with the female worker that she had not experienced any harassment.
In that sense, and especially when there is a conservative nature to the institution, like in my university,
there is an importance of drawing the line between promoting a respectful organizational culture and
fostering puritan or conservative morality prohibiting any friendly physical contact. Strengthening the sense
of agency of members of the organization, while giving effect to their choices and preferences, was a
primary goal of my work in processing claims.
In situations involving subordinate relationships, within and among faculty and students, the law presumes
lack of consent and states that they may be considered harassment even if no objection is expressed by the
complainant in real time.41 This determination acknowledges the inherent weakness of the subordinate
position and empowers the victim to reverse the power relations. Accordingly, when I learned in retrospect
of a romantic relationship developing between a unit director and a subordinate administrator, and she
described the relationship as fully consensual, I informed her that she could contact the SHC at any time if
her perception of the relationship changed. She has the power in that regard. The unit director was notified
that, since the relationship was not reported from the outset, he was exposed to a sexual harassment
complaint during the entire limitation period if the subordinate decided to pursue it and that he was
responsible for the relationship.
In another case, a faculty member turned to the SHC and described courting by a senior faculty member,
with whom she publishes articles and is somewhat dependent on for her professional advancement. She had
expressed distress following his actions and asked him to stop. Following that, according to her claim, he
was withholding his recommendation for a scholarship for her. This scholarship was very important for her
promotion and the development of her academic career. Apart from her request for documentation of this
situation, the complainant refused to disclose the identity of the alleged harasser and to file a formal
complaint. She did not disclose her own name and department, and insisted that no investigation be
conducted in this case. It was clear from her description that there had been no physical contact with the
alleged harasser, and that there was no sexual allusion on his part. Finding a way to protect her and other
potential subordinates while respecting her request not to be exposed was a challenge for me. I chose to
41
Israel's Law of Sexual Harassment Prevention, Section X.

instruct her on clarifying boundaries in case the courtship continued and ways to insist on receiving a
professional attitude. Following this case, I circulated a letter to all the academic communities on campus
clarifying the proper boundaries in relationships with subordinates, which are very common in the
university.
Another bottom-up aspect of the SHC's work is her collaboration with various university entities when
conducting her investigation. The inquiry process begins from the ground, and often follows referrals from
various sources other than the victim herself. These include deans and heads of departments who have a
duty to report; anonymous complaints; student organizations; or word-of-mouth rumors. The SHC is
assisted by professional experts related to harassment cases: social workers, campus security, mental health
professionals, criminologists, risk experts and lawyers. The work sometimes requires issuing restraining
orders, getting a professional opinion and balancing conflicting legal considerations. After the investigation,
the findings and recommendations are forwarded to the “superior in charge” of the respondent, who is the
rector when the complaint is filed against an academic staff member, the dean of students when it concerns
a student, and the human resources vice president when it concerns administrative workers. The immediate
access that I have from the field investigation to the organization's most powerful leaders provides an
effective mechanism for addressing sexual harassment and for conveying a firm message to the various
actors in the organization. Any minor complaint against a faculty member will be forwarded directly after
a quick inquiry process to the rector. The same is true for administrators and students and their
corresponding qualified body. If necessary, the case is transferred for review by a special disciplinary
committee after the investigation is complete. This combination of on-the-spot dialogue with the parties to
the complaint while bypassing the organizational bureaucracy to communicate quickly with those at the top
is a unique benefit of the SHC capacity when compared to the legal process. This advantage also lies in the
short time needed to clarify and handle complaints in the administrative channel as opposed to the lengthy
legal process. According to research conducted by the Israeli Parliament, the administrative procedure lasts
only one month in more than 60% of cases in institutions of higher education and in the context of the
SHC's treatment of cases at Bar-Ilan University – most often the treatment ended with the approval of
recommendations within the time frame of a week.42 The SHC's activities involves bottom-up thinking that
enable interdisciplinary exchange, the generation of creative solutions and the formulation of norms based
on experimentation and dialogue.
42
This data was provided to commissioners during an annual gathering of the Parliamentary Committee for
Advancement of Women to assess and compare on the national level reports provided by all academic institutions in
Israel.

Lastly, cultural sensitivity is another element relevant to bottom-up development and should be developed
in each institution. Understanding the organizational culture in my university requires responsive
regulation43 – a concept which points to the importance of adapting sexual harassment prevention measures
and practices to the relevant community, while developing self-regulation and considering the local culture.
Responsive regulation entails an enforcement pyramid that encourages compliance through mutual
cooperation, and progresses from the minor issues to the serious ones while using soft norms and measured
response. It challenges the demarcation among the civil-criminal-administrative nature of sexual
harassment44 treatment by focusing on a scaled response adapted to the preventive role of the SHC.
Responsive regulatory activity should be sensitive to organizational culture, employ a variety of tools, and
assume that progress will be achieved on a case-by-case basis while learning from the field and striving for
agreements. This activity is relevant to behaviors which may not breach the law or, legally speaking, are
minor offenses, but still require treatment and intervention. Cases involving threatening looks, excessive
closeness, inappropriate jokes or inappropriate suggestions may intimidate possible complainants and thus
I make it clear that this is not acceptable behavior and requires remedy despite the fact that it falls within
the scope of the law. At times, interpretations of advances differ, with some students interpreting them as
harassment and others not seeing them as such. For some minorities, a casual expression or gaze at a woman
may be interpreted as an insult. The starting point is recognition of the complainant's experience and
strengthening her courage to file a complaint and deal with the injury. At the same time, giving full
legitimacy to the injury many times did not necessarily require severe punishment of the respondent, who
may not have been aware of the impact of his acts. These cases that are seemingly small and require an
apology letter or boundary clarification are important because they elucidate the relationship between
sexual harassment and maintaining a respectful culture while developing intercultural competence on
campus in general. My choice was therefore to extend the boundaries of the position and view cases that
are borderline in terms of the law as justifying monitoring and treatment through micro-management.
The creative potential of the SHC to promote empowerment and care may be part of the unique authority
given to her. At the end of the treatment process, there is a recommendation to the superior in charge – the
rector, the dean of students or the human resources vice president. The recommendation could be a generic
43
Ian Ayres & John Braithwaite, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992);
Jay A. Sigler & Joseph E. Murphy, INTERACTIVE CORPORATE COMPLIANCE: AN ALTERNATIVE TO REGULATORY
COMPULSION (1988).
44
Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault
Debate, 64 U. KAN. L. REV. 963 (2016) (discussing the proper legal regime to address sexual harassment on
campuses, addressing the debate for and against Title IX enforcement by proponents of criminal involvement
instead of administrative one).

referral to a disciplinary committee or another recommendation for action. Many times in the shadow of
this authority, cases can be disposed with the resignation of the respondent or consensual arrangements
equivalent to plea bargains in order to escape the burden of a trial before the university tribunal.45 Even in
the most severe cases, when the respondent and his supervisor realize a violation of the law has occurred,
the process of inquiry ends with an agreed course of action and sanctions, which can sometimes be severe,
such as permanent dismissal of the respondent. A dean of students who understands that his student is in
danger will many times use his authority to monitor the situation and the conversation which develops in
my room may mobilize him to become a partner in preventing the next case of harassment.46 I always
emphasize the shared interest we have in promoting a safe and respectful organizational culture. The
shadow of a prolonged semi-legal procedure is another incentive to encourage small-scale organizational
change, which is the best way to deal with problems that require immediate intervention.
III. RECONSTRUCTING THE SEXUAL HARASSMENT CASE: GUIDELINES

The above six principles of alternative justice embody a particular set of conflict resolution ideals and
practices that can be offered as guidelines for SHCs:
Build a process: Make sure to structure the hearing of the sexual harassment complaint with problem solving
in mind, carefully setting the agenda, collecting the information, and providing a transitional space for
transforming the harassment condition.
Develop a constructive, future-oriented perspective: Perceive your role as encouraging a learning

experience that will empower the relevant stakeholders, and especially the complainant, a process which
will encourage hope, well-being and healing. Learning how to prevent future similar cases is also important.
45
For an overview of the prevailing tendency to avoid trial and pursue plea-bargains and settlements, see Marc
Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J.
EMPIRICAL LEGAL STUD. 459 (2004); Marc Galanter, The Hundred-year Decline of Trials and the Thirty Years
War, 57 STANFORD L. REV. 1255 (2004); Michal Alberstein & Nourit Zimerman, Constructive Plea Bargaining:
Towards Judicial Conflict Resolution. OHIO ST. J. ON DISP. RESOL. 32 (2017): 279.Kanner, Sari Luz, et al.
Managerial judicial conflict resolution (JCR) of plea bargaining: Shadows of law and conflict resolution. New
Criminal Law Review 22.4 (2019): 494-541.
46
Considering the relatively minor nature of the cases I have treated, no litigation has challenged recommendations
suggested by me and implemented by the university. Cf. Erin E. Buzuvis, Title IX and Procedural Fairness: Why
Disciplined-Student Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault, 78 MONT. L.
REV. 71 (2017) (describing the extensive litigation by disciplined students and its importance in terms of
monitoring and supervising Title IX procedures).

Focus on the hidden layer: Try to find the underlying needs and interests of the stakeholders and causes of
the conflict. Actively listen to the stakeholders, assuming that digging into the case while addressing needs
and interests will enable creativity and synergetic solutions.
Deconstruct the conflict, complexify and manage it: Many cases of harassment involve multiple subjects,
ambivalent approaches, and complex relationships. Addressing this complexity is important in order to find
the appropriate creative response and treatment, as well as for setting the agenda for the hearing.
Focus on relationship and acknowledge emotions: Target your intervention towards understanding,
improving and maintaining relationships and fostering a culture of respect on campus. Acknowledging
emotions can be an important step for stakeholders, allowing them to understand the situation more clearly.
Work from the bottom up: Empower victims and relevant stakeholders, address any concern from the
ground and treat it swiftly and with measured response. Learn from colleagues from all disciplines and
nurture a culturally sensitive approach.
IV. BETWEEN THERAPY AND LAW

Providing a broad therapeutic response while internalizing the norm and protecting human dignity fits
perfectly with the function of law as promoting social change and can be even considered its ideal
application.
Starting from the first phone call, therapeutic elements are integrated into the SHC’s work: She must process
claims quickly, to protect complainants and to provide them with a safe space. Consulting with therapeutic
experts is frequently required during the investigation, and counseling is often needed for the complainant,
sometimes for the respondent as well. Combining remedies such as writing an apology letter or therapy in
order to promote transformation and healing is an integral part of constructively processing the complaints.
A follow up in order to reassure the improvement of the situation is part of this approach.
Nevertheless, therapy is not the only value which guides the SHC's work. Approaching the SHC may
sometime result in loss of control by the complainant, since her personal interest is only one consideration
among many guiding the SHC. A complainant who withdraws a complaint, or a victim whom I have reached
following a rumor from a third party, can be reluctant to cooperate with the investigation. In many cases,
they refuse to testify. Sometimes they urge me to close the investigation and may become angry or even
furious about opening a case that they prefer to keep only to themselves. They are afraid that confidentiality
will not be strictly maintained and that their career will be affected; too much sunlight, they fear, can burn.
However, my role is to investigate a case and even a rumor, for the benefit of other potential victims, and
for the community as a whole. I always explain I need to keep handling the case even for their own sake,

since there is always the possibility that in retrospect they will feel the university did not do enough and
might challenge the university for not preventing future damage and minimizing risk. As an SHC, my role
is to carefully balance the right of privacy of the complainant and her therapeutic sensitivities against what
I perceive as her own interest in the future, the interests of other victims, the public interest in investigating
and clarifying the case, and the respondent's interest in clearing his name. This broad spectrum of interests
may result in choices that are not therapeutic in the strict individualistic sense. Therapy in the shadow of
the law and authority becomes in that sense a unique quality of this process. My focus is not on personal
needs, as in clinical therapy, but on narratives of entitlement, which are socially constructed, and need to
be addressed from a cultural perspective.47 Emotions and needs are perceived by me as socially constructed,
dependent on the interpretations of people, framed through their cultural perspectives, and they may change
48
and transform over time.be reconstructed through the normative narratives Narratives of harassment can
of the law, and the experience of a victim can be transformed while maintaining a safe space and an
educational experience for the harasser. Detailed annual reports to the parliament and university
management on anonymized cases which were treated by the SHC manifest the public nature of this role,
which integrates anonymity for the individuals together with transparency as to the modes of treatment.
The goal is to heal the social fabric through the unique private-public exchange produced through this
process.
V. BEYOND SEXUAL HARASSMENT

When I was asked by the rector of my university to take up this role, I was at once honored and at awe.
Yes, like many women, maybe all women, I was sexually harassed before (me too) and knew how important
it was to fight this phenomenon and to transform the organizational culture. At no time in my life had I
imagined myself taking up such a delicate and demanding role of fighting publicly for this cause and being
personally responsible for protecting so many vulnerable persons. The request worked on me as a calling –
I knew I should say yes, yet did not know why and how. Each time I had a case to take care of I felt this
drive of a mission giving me energy to provide temporary redress, to collect evidence, to report and
recommend, to follow up. This sense of a mission, of a calling, was many times my guiding compass, the
force behind insistence and persistence many time against other voices in the organization. I felt that it was
following this inner voice that gave me energy and guidance. Conducting this role requires strong intuition
47
For a discussion of the relationship between narrative therapy and mediation, see Winslade & Monk supra note
31.
48
Winslade & Monk , id., discuss the way narratives of exaggerated entitlement may transform during a narrative
mediation conversation. Such a process can happen for harassers during dialogue with the commissioner as well, as
he considers other perspectives on his conduct, including the effect on the victim and other possible victims.

and a sense of justice, and some moments are filled with doubt: approaching the grey land of discretion,
trying to capture the situation, demarcating the relationship and context, framing and reframing my
expected role.
Sexual harassment is only one of many contexts that require responsive regulation and a conflict resolution
approach. In that sense, this article illustrates an innovative way for the law to advance from one case to
another while aspiring to transform the organizational culture. Sexual harassment can be considered as one
form of discrimination based on cultural bias, and in that sense this approach can be expanded to address
other minorities including LGBTs, ethnic and religious communities, people with disabilities and so forth.
This second stage should take the sexual harassment lessons to promote intercultural competence, and to
fight racism, discrimination and implicit bias.49
Our work place, and the university for the sake of this article, constitutes our second home and we spend a
significant part of our time and daily life there. Sexual harassment threatens the social fabric as well as the
research and learning conducted in the university, and requires effective interventions. Self-regulation by
the university of this intervention takes into account the unique character and needs of the organization,
combining therapy with authority, and conflict prevention risk management of the situation. Seeds for such
an approach exist today mostly in problem-solving courts and small enclaves of ADR processes, but the
greater part of legal practice is still based on a command-and-control perspective, a narrow application of
norms, and a focus on the past. Taking lessons from sexual harassment treatment as a paradigm for conflict
resolution in the shadow of the law may have far-reaching influence on the practice of law in general, and
on the possibility of promoting social change through legal action.
49
Indeed, my current role at the university is of the “chair of Israeli hope” in academia: a commissioner for the
promotion of integration of the tribes of Israeli society, a project sponsored by the president of Israel Reuven Rivlin
and by the High Council of Education. The project aims to encourage inter-cultural competence and to fight
discrimination and bias.

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Alberstein ALTERNATIVE JUSTICE FOR SEXUAL HARASSMENT

ALTERNATIVE JUSTICE FOR SEXUAL HARASSMENT CONFLICTS: A TALE FROM A

A. Process Emphasis .................................................................................................. 7

B. Constructive, Future-Oriented Emphasis .............................................................. 8

C. Deconstruction and Hybridization ......................................................................... 12

D. Focus on the Hidden Layer ................................................................................... 13

E. Relational Emphasis and Emotion Acknowledgement .......................................... 15

F. Bottom-up Emphasis and Community Development ............................................ 19

III. Reconstructing the Sexual Harassment Case: Guidelines ............................................ 23

IV. Between Therapy and Law ........................................................................................... 24

V. Beyond Sexual Harassment ........................................................................................... 25

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II. CONCEPTUALIZING SEXUAL HARASSMENT THROUGH ALTERNATIVE JUSTICE PRINCIPLES

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B. Constructive, Future-Oriented Emphasis

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C. Deconstruction and Hybridization

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D. Focus on the Hidden Layer

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E. Relational Emphasis and Emotion Acknowledgement

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F. Bottom-up Emphasis and Community Development

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III. RECONSTRUCTING THE SEXUAL HARASSMENT CASE: GUIDELINES

Develop a constructive, future-oriented perspective: Perceive your role as encouraging a learning

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IV. BETWEEN THERAPY AND LAW

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V. BEYOND SEXUAL HARASSMENT

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