Many employers, believing the claim to be absolutely meritless, react quite negatively, and refuse to go to a mediation. That may well be an unfortunate emotional reaction which deprives the employer of an opportunity to (1) settle the claim early and thus avoid the expense and time consumed responding to the claim, drafting a position statement and participating in the investigative process which takes affected employees away from their work to respond to the Commission’s investigator; and (2) cuts off the opportunity to learn a great deal about the Charging Party’s claim and allegations, which, if you do not settle, permits you to be much more responsive and pointed in your responses to the Commission.
The EEOC makes the opportunity to mediate available in a sizeable portion of its cases, and receiving such an invitation is a good sign. The EEOC seldom makes a mediation offer available in cases--they call them “A” cases--where they believe an egregious violation has occurred and/or they believe they are dealing with a systemic practice of the Employer. In those cases, no offer to mediate is made, and they generally mount an all-out assault on the employer.
If they deem the case to be meritless because of time limit problems or because the complaint as written simply fails to make a cognizable complaint under the law, they generally do not send such an invitation and they generally do not investigate and merely issue a Right to Sue letter, which could result--but generally does not--in a hastily filed and fatally flawed lawsuit.
The Commission normally offers the mediation utilizing their own in-house mediators, to be conducted in the nearest EEOC office, in the Alternate Dispute Resolution department. Thus, you may be forced to drive some distance, and you may initially feel a bit intimated because you are in the EEOC offices, which are generally seen as biased against employers (which is certainly not always true). Most of the in-house mediators are truly looking to find a reasonable resolution to the complaint, and do not exhibit a pro-complainant bias in this writer’s experience.
The mediation normally opens with a joint session, wherein the charging party tells his or her story, often complete with strong emotions punctuating the performance. It is critical not to let the emotion cause you to become upset, because often the “venting” by the former employee is a virtual therapy session, and relieves much of the pressure and anxiety. Once the emotion is vented, the Charging Party may become far more reasonable in his or her demands. The employer is then offered the opportunity to tell its side of the story, which should be done in a fairly straightforward, unemotional professional presentation. Keeping the emotional lid on during the employer presentation is critical to keeping the process working.
After that opening, and sometimes some questions from the mediator, the parties are separated and the shuttle diplomacy show begins, with the mediator going from room to room trying to convince the employer to pay more than he/she thinks the case is worth, and trying to get the Charging Party to take less than he/she wants. In most cases, the Charging Party is not represented by a lawyer, and while the mediator may attempt to help them, the dollar demands are generally far lower than later, after a lawsuit is filed and a lawyer now has to demonstrate that he/she earned the fee which the attorney will receive.
Additionally, this process will reveal much of the “facts” that the Charging Party believes supports his or her case. It is, in effect, free discovery. The employer may well discover problems that management did not know about, and often they can both resolve the claim and take action to prevent another such claim in the future. Finally, if the Charging Party opted for the mediation it is quite likely he or she hopes to get the charge resolved quickly, which may be very good news for the employer.
It is advisable to have your legal counsel with you at such mediations, as they often are the one making the presentation on behalf of the employer, thus taking a bit of the emotion out of it, since the lawyer likely had no participation with the action or decisions which from the basis for the charge. The lawyer is also well suited to gathering the type of information necessary to prevail in the event the mediation fails. General lawyers are not typically the best choice, but instead a lawyer who specializes in employment law will have important detailed knowledge of employment law and the EEOC processes. The right lawyer will likely have a good relationship with your mediator, which can provide a bit of a head start on the process.
In short, the mediation is an inexpensive method of resolving many cases before they ripen into litigation, and it presents the opportunity to learn much of what the aggrieved employee/former employee/applicant thinks is important. Further, if you have multiple charges and multiple successes with the process, you may find yourself in a better position with the EEOC in the future. Finally, whatever goes on in the mediation is not revealed to the EEOC investigator, so if it fails you need not be concerned that you will be prejudiced.
Early mediation may be just the ticket for a cost effective way to resolve an EEOC claim. To contact the author, please click here.