Legal Clinic

Mediating Employee Concerns

Mediating Employee Concerns | Human Resource Executive Online The EEOC's mediation process is not utilized enough by employers -- for a variety of reasons. But they should think twice. Even when it doesn't result in a settlement of the worker's charges, it can result in valuable insight into the underlying workplace problems that gave rise to the complaint.

Monday, June 15, 2009
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For employers who are not in the know, mediation can be seen as a bad word. However, employers facing Equal Employment Opportunity Commission complaints may want to consider mediation, which can save everyone time -- and money! This month, we explore the ins and outs of EEOC mediation as well as the hidden benefits to mediation that employers should know.

Question: When faced with an EEOC case, is it better in the long run for employers to opt for mediation or answer the charge?

Even though the EEOC provides a free and confidential mediation program that can help employers settle claims, many employers are apprehensive about utilizing mediation as an option. This is largely because few employers know how the mediation program works and have heard varying myths about the process.

However, because the EEOC mediation process can be beneficial for employers in many circumstances, even when it does not culminate in settlement of the employee's complaint, every employer should become acquainted with how the mediation program works and its benefits.

The EEOC Mediation Process

The EEOC evaluates each charge filed with the organization to determine whether or not mediation is an appropriate resolution option. Not all charges, however, are deemed eligible for mediation -- only charges the commission determines have merit will past muster; those without will not be deemed eligible.

If the EEOC decides mediation may be appropriate, an EEOC representative contacts the employee and employer to see whether both parties will agree to participate in the program. If both parties agree, the EEOC representative schedules the mediation before the commission begins investigating the charge. The parties then meet with a trained mediator, who is either a member of the EEOC staff or is an external mediator working with the EEOC.

Depending on the complexity of the charge, the mediation process can last anywhere from a couple of hours to a couple of days.

The parties are permitted to have their counsel present, but it is not necessary. The mediation begins with introductions by the mediator, who explains the process. The parties are then invited to give opening statements and to explain the dispute from their perspectives. The parties then work to clarify disputed issues and identify their concerns. The mediator may caucus with each party separately to get more information, provide a reality check and discuss settlement. The parties ultimately reconvene to negotiate a mutually acceptable resolution.

If the parties are able to reach an agreement, it is put into writing and executed. Once the parties reach an agreement, the EEOC charge is closed.

However, if the parties are unable to reach an agreement, the EEOC investigation proceeds just as it would have had the parties not engaged in mediation. EEOC mediation is confidential, and remains insulated from the commission's investigative and litigation branches.

Benefits of Mediation

Employers often decline mediation based on the belief that, because the charges filed against them are inherently without merit, the EEOC will not issue a finding of reasonable/probable cause.

Some employers also shy away from taking any action once a charge is filed as it may arguably be seen as demonstrating a weakness. Because of the fear that agreement to mediate will signal to the charging party a willingness to pay something in settlement, many employers write off the EEOC mediation process without giving it much thought.

It is exceedingly rare for mediation to result in the withdrawal of the EEOC charge by the disgruntled employee without the employee receiving anything in return by way of settlement (either a monetary or non-monetary settlement).

On the other hand, even if a case does not settle in mediation, the process can provide an employer with valuable information about the employee's complaint as mediation often results in "free and unbridled discovery."

This "free discovery" is extremely useful for employers in crafting a persuasive position statement that outlines the defects in the charge for the EEOC. Additionally, from a tactical perspective, agreeing to mediate will also extend the time an employer has to submit its position statement.

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Apart from these strategic advantages, there are many other benefits to mediation that employers should consider before writing it off altogether.

First, mediation can save employers time and money, as the mediation itself is free. Additionally, mediations are usually completed in one meeting, before the employer has to write a position statement or provide the EEOC with any documentation.

Mediated cases are resolved in about 85 days, on average, compared to the 160 days it takes for cases to typically wind through the investigative process, according to the EEOC.

Moreover, mediation is often successful. From 1999, when the EEOC implemented the mediation program, to 2008, the EEOC performed nearly 111,000 mediations, and approximately 69 percent of the charges were successfully resolved, according to the commission. A survey of parties that participated in mediation found that 96 percent of employers would use the EEOC mediation program again if offered.

Mediators often employ creative approaches to resolving claims, and in many cases explore non-monetary benefits. In approximately 13.5 percent of cases, the only benefit involved in the settlement is a non-monetary one. 

Perhaps most importantly, mediation fosters open communication between the complaining employee and the employer. This open form of communication provides the employer with a unique opportunity to better understand issues that affect the employee in particular and the workplace as a whole.

Employers almost always benefit from such frank discussions because the information garnered from the discussions can provide employers with valuable insight into the underlying workplace problems that gave rise to the complaint (whether valid or invalid) that impact other employees in the workplace, and that thereby often result in additional charges and complaints.

By uncovering these issues through mediation, an employer can take the necessary steps to better protect itself from being on the receiving end of similar charges and lawsuits in the future.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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