EEOC Mediation Results

More than 75,000 employment discrimination claims are reviewed by the EEOC each year. To help reduce its workload, the EEOC introduced a voluntary mediation pilot program in 1993, which then became operational in April 1999. The program’s first year was highly successful: Of the 11,728 disputes mediated, 64% were resolved successfully. According to a research project conducted by

E. Patrick McDermott of Saulisbury State University, a professor with experience in both a law firm and an in-house corporate legal department, 96% of the participating employers and 91% of the plaintiffs said they would be willing to participate in the program again.

EEOC Mediation Process

An individual who believes any of the above statutes have been violated can file a charge with the EEOC. An EEOC employee then meets with the “charging party” to help prepare a short-form charge that states briefly which statute was allegedly violated, under what circumstances, and when. Other information, such as the number of employees in the company and the age of the charging party, is also necessary to determine whether the charge is eligible for protection under the statutes. A more complete statement is then taken. If the case appears to be eligible for EEOC participation, the charge sheet is sent to both the employer and the EEOC mediation section.

The mediation section, operating independently of the enforcement and litigation sections, contacts both the employer and the charging party to determine whether they will voluntarily participate in mediation. Recent statistics show that 90% of charging parties and more than 40% of employers have agreed to participate, and this percentage has steadily increased as more and more employers have learned about the program’s benefits. If both the charging party and the employer agree to mediate, the process begins and usually is completed in less than 90 days.

Mediation is offered without charge to the parties, as an alternative to the traditional investigative and litigation process, and the EEOC maintains no interest in the outcome of the mediated dispute. Prior to the process, the EEOC distributes informational materials to the parties explaining that “mediation gives the parties the opportunity to discuss the issues raised in the charge, clear up misunderstandings, determine underlying interests or concerns, find areas of agreement, and, ultimately, incorporate these areas of agreement into solutions.” It is stressed that persons attending the mediation should have the authority to settle the dispute. If mediation proves unsuccessful, the charge is investigated like any other, without any of the information disclosed during the mediation process. The majority of mediations are completed in one session lasting less than five hours.

The Mediator’s Role

CPAs with mediation training and experience and a good knowledge of the laws enforced by the EEOC are eligible to serve as independent outside mediators.

Mediation conferences are usually held at the local EEOC office, but they may be held at any neutral location agreed upon by both parties and the mediator. The conference generally follows the commercial mediation format but can be modified to suit individual circumstances. The mediator usually opens the conference by explaining her background, introducing the participants (who may come with or without an attorney or advisor), outlining the mediator’s role as a neutral, detailing the procedures that will be followed, and requesting that the participants sign both confidentiality and mediation agreements. When both parties are ready to begin the joint meeting, the mediator asks the charging party to explain the dispute in his own words. Then the charging party’s representative, if any, is asked for any additional comments. The employer and its representative, if any, then reply. Approximately 41% of charging parties and 58% of employers are represented by counsel at EEOC mediations.

Following the joint meeting, the mediator meets privately with each party. These meetings, referred to as caucuses, are a form of shuttle diplomacy enabling the mediator to help the parties come closer to an agreement. The meetings are confidential: The mediator can only relate to the other party information that is specifically authorized to be disclosed. Caucuses continue until either a negotiated settlement or an impasse is reached.

When the parties agree to settle, they are brought together again to confirm and draft the terms. The EEOC requires that certain language be included in the agreement, such as the charge being terminated, an assurance that there will be no discrimination or retaliation against the charging party, a notice that the agreement does not constitute an admission by the employer of any violation of the laws enforced by the EEOC, and a caveat that the EEOC is authorized to investigate and enforce in court any alleged breach of the agreement.

Employment Disputes

This article is the third and final installment in a series covering the resolution of employment disputes through alternative dispute resolution (ADR). The first installment, “Resolving Workplace Disputes Through Mediation” and “Workplace Dispute Risk Assessment,” appeared in the September 2000 CPA Journal. The second installment, “In-house Resolution of Employment Disputes” and “No Company Is Too Small,” appeared in the December 2000 issue.

Editor:
Philip Zimmerman, CPA
Mediator and Arbitrator

©2009 The New York State Society of CPAs. Legal Notices