When an Equal Employment Opportunity Commission (EEOC) charge of discrimination is filed by an employee, the EEOC may refer the complaint to the EEOC’s National Mediation Program, presenting both the employee and employer with the opportunity to participate in an EEOC mediation.
We previously discussed tips an employer should consider when an EEOC charge is received. One of those tips was to consider mediation prior to responding to the charge. Here, we will discuss the EEOC mediation process in more depth.
What is EEOC Mediation?
The EEOC offers mediation as an alternative to the traditional investigative and litigation process. Mediation is an informal process whereby a mediator facilitates a discussion between the parties in an attempt to resolve the dispute. The mediator is a third-party neutral with mediation and employment law experience. The mediator is either on staff as an EEOC mediator or externally contracted by the EEOC.
How do Parties Engage in EEOC Mediation?
Upon filing of a charge, prior to investigation, if the EEOC decides that a charge is appropriate to refer to the EEOC mediation program, an EEOC representative will contact both parties to offer mediation. Participation in mediation is strictly voluntary. Both parties must agree to participate in order for the mediation to proceed. If both parties agree, a mediation is scheduled. If either party declines, the EEOC proceeds with its investigation.
Even if the EEOC does not offer mediation, either party can request mediation. As long as both parties agree to participate, the EEOC considers the charge for mediation.
Is EEOC Mediation Effective?
The EEOC first started a pilot mediation program in 1991 and fully implemented the mediation program in 1999. Mediation through the EEOC’s program has been effective, with a successful resolution rate of over 65% in 1999 rising to over 75% from 2011 to 2017.
Mediation through the EEOC’s National Mediation Program is free to both parties. Mediation is also confidential. Parties are required to sign a confidentiality agreement and information disclosed during the mediation is not shared with the EEOC investigative or legal staff.
What Happens to the Charge after Mediation?
If resolution is reached at the mediation, the charge of discrimination is resolved through a settlement agreement. If resolution is not reached, the matter is referred back to the EEOC’s investigative unit and the employer receives a new deadline to file a response to the charge.
What to Expect at the Mediation
EEOC mediations generally follow a standard formula. The mediator will gather the parties in one room for a joint session where the mediator will describe the rules of the mediation and the mediation process. The parties will each have an opportunity to give an opening statement presenting the party’s position regarding the charge. The mediator will then send each party into separate rooms and the mediator will start the process of shuttling between rooms, gathering information to better understand each party’s position and conveying offers and counter-offers. In doing so, the mediator will point out strengths and weaknesses in a party’s position with an aim towards getting the parties to a mutually agreed upon resolution.
If a resolution is reached, the mediator will have both parties sign a settlement agreement. If a resolution is not reached, the mediator will explain the next steps in the EEOC process.
Advantages of Mediation through the EEOC
Again, mediation through the EEOC is free to both parties. This will not be the case if the parties later agree to a private mediation outside of the EEOC National Mediation Program. Mediation is also efficient. Most mediations are completed in one session
Mediation provides an opportunity for the employer to try to settle the matter before incurring costs of lengthy and unnecessary litigation. Perhaps most importantly, mediation also provides an employer the opportunity to learn important facts in a confidential, informal setting so it can better assess the merits of its position at an early stage.
Of course, the decision of whether to participate in mediation should be made on a case by case basis. Nevertheless, when available, mediation is an option that an employer would do well to consider.