Adversarialism and opposing views — rather than addressing potential discrimination — informs each side’s actions and perceptions in a legal case. According to Rights on Trial, plaintiffs see themselves as the little guy in a litigation system stacked against them with adversaries who believe discrimination exists — just not in their cases:

Defendants who insist they abide by the law yet find flaws with every individual case by using stereotypes. They become defensive and can escalate tensions with abusive legal tactics such as using summary judgment motion to tell plaintiffs they have 45-day time limit to take depositions, etc.. Inundated with other cases, plaintiff lawyers often push for an early settlements to get rid of the case, giving no attention to the merits of the case fro either side as they jockey for position.

Judges who often don’t see discrimination evidently in cases without smoking gun evidence and play a role not just in decisions but...

Plaintiffs often look to law or organization policy to object to management decisions, especially with new managers feeling threatened by high performers. They observe race and/or gender bias and attempt to resolve it through their employers’ internal channels: meetings with HR or higher-ups or ethics hotlines. Sometimes employers analyze and tackle claims at the source and help managers learn from mistakes to prevent future cases. Most of the time, they either assume managers handle the claim or simply don’t investigate or investigate only to understand if the employee has a legit legal claim and to re-position the claim as a miscommunication and meritless.

Because of this encouragement to report problems, plaintiffs report surprise to hostile reactions from employers when they report, assuming they will be receptive. With no resolution or with termination — and without awareness of the asymmetry of power in the workplace and legal system — employees contact...

Mediation and other forms of conflict resolution require symmetry of power in which empathy and rational discussion take place.

With abuse, however, there's generally a drastic asymmetry of power, with manipulation and lack of empathy at the core of the desire for power and control.

Mediation doesn't work with abuse at work, just like it doesn't work with domestic abuse. Arbitration is even worse, a common requirement in employment contracts that rids you of your ability to sue no matter what happens at work. 

Targets generally report no positive outcomes with mediation. Rarely are there consequences for abusers. In fact, employers give consequences to targets instead, perceiving them as not inline with company goals and team-focused. 

In most cases, company power is stacked against targets who speak up.

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