Sexual harassment in the workplace or elsewhere is by no means a new occurrence. The #MeToo movement and the recent Harvey Weinstein trial have brought it long overdue public attention.

Before #MeToo, there was some use of mediation in sexual harassment cases. Typically, those who did seek redress employed attorneys who issued a demand letter to the employer after which the employer conducted an investigation. Mediation in those cases typically focused on liability and the amount of an award. Confidentiality was required and the complainant’s demand for discipline or termination of the harasser was rare.

The #MeToo movement has brought several important changes. More women have been encouraged to come forward with complaints. Employers’ response overall has changed. Previously, employers relied on their own HR departments or counsel to investigate the complaint, but today it is more likely that employers use external third-party neutrals to perform an investigation.

Demands made by victims has changed as well. Employers report that victims are more likely to make greater demands, including discipline and termination of the harasser. Additionally, women no longer fear going public with allegations making non-disclosure agreements less relevant. Employers may have become more concerned about confidentiality to protect their image while victims are more willing to make their cases public. These changes have revised the content of those complaints that do go to mediation.

A complicating factor is a 2017 federal tax law that employers cannot deduct any money spent on settling or litigating sexual harassment claims. Thus sexual harassment is treated differently from gender, race, age, national origin and disability claims. The implications of this change is yet to be clear.

Mediation for sexual harassment presents many unique challenges. In the biggest ever sexual harassment case to be mediated, some 80 women entered into mediation talks with Harvey Weinstein’s attorneys, demanding $100 million for a victim’s fund. Weinstein’s insurers are not willing to pay anything near that amount. While the case has certainly brought increased public awareness, the victims face enormous obstacles for any compensation for suffering and damages to their careers.

The function of mediation in sexual harassment cases has definitely changed as has public awareness. The fundamental issue, though, is whether or not the workplace itself has actually changed.

We recognize that mediation and negotiation are most effective when the parties are of approximately equal power. An initial strategy of community activists, for example, is to equalize power before negotiating.

However, there is one aspect of power imbalance that is not typically recognized. Research by neuroscientists Jeremy Hogeveen and his colleagues in 2014 demonstrated that the belief that one has power changes the way the brain operates.

Hogeveen focused on the mirror system region of the brain, which contains neurons that become active both when we do an action, such as squeeze a rubber ball, and when we watch someone else do that same action. Furthermore, we may also begin to empathize with what motivates another person’s actions.

The research examined whether giving a person a feeling of power or powerlessness would change how the mirror system responds to someone else performing a simple action.

Consider this example from the study: Participants wrote a diary entry either about a time they depended on others for help or about a time they were in charge. The researchers then measured the way the participants’ mirror systems responded to someone else performing a simple action. Those feeling powerless had more empathy than those feeling powerful. This study demonstrates that believing one has power diminishes all varieties of empathy.

It’s dangerous, of course, to extend this study across the board, but with that caution the research strongly suggests that the more powerful person in a mediation or negotiation has diminished empathy for the less powerful party. Without an empathetic understanding of the other party’s circumstances, the more powerful one may not be willing to work cooperatively to develop outcomes that meet the needs of the less powerful.

Impartiality is a mediation ethical standard. In mediations between parties with an extreme power imbalance, some mediators are reluctant to work to balance the perception of power. Other mediators will withdraw from conducting a mediation if they feel the less powerful person is not able to function in their best interest. This research, however, suggests another course of action, that is to attempt to encourage the more powerful participant to better understand the situation of the less powerful person. Nonetheless, feeling one has greater power may make one somewhat insensitive to the needs of the less powerful party.