The U.S. Equal Employment Opportunity Commission began to implement a successful nationwide mediation program in the late-1990s as a way to resolve employment discrimination claims. In the last few years, the EEOC'S backlog of cases, as well as its processing time, have been reduced by over 50 percent. In addition, the use of mediation has been widely praised by both charging parties (i.e., employees) and respondents (i.e., employers) as an effective and efficient way to resolve their employment discrimination disputes and increasing the likelihood that the parties can continue an employment relationship.
Historically, civil rights enforcement has been anything but civil. To many, the enforcement system seemed to exacerbate the problem by encouraging protracted litigation. In short, it was as if the enforcement system was designed to "make a federal case" over every employment discrimination claim. Everyone involved -- employers, employees and the federal agency entrusted to enforce the discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC) -- seemed to have a gripe about the system.
For employers, discrimination lawsuits had increasingly become a serious threat to the bottom line. EEOC statistics have indicated that the average discrimination violation costs employers over $14,000 (7). And while the same statistics have indicated that employers had been "winning" about 80 percent of claims filed each year with the EEOC (7), these numbers hardly tell the whole story. The impact on an organization's bottom line, when such things as attorneys' fees, workplace disruption and lost productivity are included, has undoubtedly been much greater.
Not that employees were enamored with the EEOC's traditional enforcement procedure. Over the years, the long delays in processing claims through the EEOC's traditional enforcement procedure had left many employees with the feeling that their civil rights were more imaginary than real. By the late 1990s, for example the EEOC's average processing time had grown to over 600 days (2). In sum, justice delayed had too often become justice denied.
Among those most aware that the system had broken down was the EEOC itself. After years of accumulating additional responsibilities with the enactment of new civil rights laws (e.g., Americans with Disabilities Act) or the development of new legal concepts (e.g., sexual harassment), staffing levels at the EEOC had simply not kept pace. In 1999, for example, disability and sexual harassment claims, virtually unheard of 10 or 15 years earlier, were being filed at a rate of 30,000 per year and accounted for almost 40 percent of the EEOC's caseload (7). During the same period, however, there was no appreciable increase in EEOC staffing (8). As a result, the EEOC was falling further and further behind in meeting its statutory mandate of enforcing federal discrimination laws. By the mid- to late 1990s the EEOC had a backlog of over 100,000 cases (4).
For the last few years, the EEOC has promoted a form of alternative dispute resolution (ADR), mediation, as a solution to the problems surrounding the resolution of employment discrimination claims. This article will examine the question of whether an organization should utilize the EEOC's ADR Program and, if so, what preparation should take place prior to the mediation. The actual EEOC mediation process will then be explained and the key elements of any mediated agreement will be discussed. This analysis should assist organizations in assessing whether the EEOC's ADR Program truly is a more efficient and effective -- and civil -- way to resolve their employment discrimination claims.
The Promise of Mediation
Prior to the initiation of the EEOC's ADR Program, employees who believed they had been victims of discrimination would either quit, use the company's internal complaint procedure, if one existed, or file a lawsuit. Employers who had an employee complaint procedure usually provided some type of "open door" system to their employees to help resolve their employment disputes. Employees were generally told to file any complaints with their supervisor, a division head, the human resources department or the company president. While such open door policies seemed logical at first glance, they rarely worked as intended. Indeed, research has indicated that employees who filed complaints were often viewed as troublemakers and suffered lower subsequent performance appraisals, lower wage increases and, not surprisingly, higher turnover than those who did not file complaints . It is as if the open door had an "exit" sign on it. Moreover, the cost and delays involved with filing a claim with the EEOC, as noted earlier, made such action an unattractive option for employers and/or employees. Mediation, at least theoretically, appeared to offer several advantages over traditional enforcement procedures such as EEOC complaints and lawsuits and internal dispute resolution procedures, such as "open door" systems.
First, mediation offered the likelihood that the employment discrimination complaint could be resolved faster and cheaper. The EEOC's initial pilot studies of mediation indicated that complaints were resolved substantially quicker, and therefore more economically, than under the traditional enforcement system. For example, the average time from filing the charge to completing the mediation in the pilot program was just 67 days -- compared to 294 days to complete the traditional EEOC enforcement process (2). Moreover, while it is unknown whether or not typical open door systems resolve employee disputes more quickly than EEOC mediation, the studies noted earlier indicate that open door systems were likely to be ineffective in either uncovering discrimination problems or successfully resolving them once they came to light.
Second, mediation offered the distinct advantage of providing both parties with a "reality check" from an unbiased third party rather than a company-paid employee or a government investigator. Indeed, it is often not the message, but the messenger, who is critical in resolving employment discrimination claims. For employees, outside third parties generally have more credibility than company representatives, be they managers or human resource staff. For employers, outside third parties generally have more credibility than EEOC investigators. This is not an indictment of the truthfulness or effectiveness of managers, human resource staff or EEOC investigators. It is simply a fact that parties will invariably assess another's credibility through a prism of self-interest. The emphasis on neutrality allows the mediators, and the mediation process, to play the special role of "truth-teller." An EEOC study has found, for example, that the parties viewed EEOC mediators as unbiased at the beginning of the process, and believed they remained neutral throughout the entire mediation (1) By playing the role of an unbiased "truth-teller," the mediator can help the parties reevaluate unrealistic assumptions and, consequently, bridge the gap between the parties' initial positions.
Third, EEOC mediation offers the parties confidentiality. A public airing of problems before the EEOC or a court not only damages future relationships and organizational morale, it often provokes parties to "dig in" and maintain rigid positions for fear of looking like they "caved in." In that sense, litigation is a double-whammy -- not only does it make compromise more difficult, it almost guarantees that there will be a employment relations hangover, regardless of the outcome. Mediation, on the other hand, offers the promise that anything revealed during the mediation will be kept confidential. Moreover, the EEOC's ADR Program specifically requires that the parties agree not to use any information disclosed during mediation in any subsequent proceeding. Indeed, the EEOC ADR Program includes an explicit "firewall" that strictly prohibits any communication between the mediators and the EEOC's investigators (3). The confidentiality afforded by mediation allows the parties to make the admissions and compromises necessary to reach a compromise solution.
Fourth, mediation's non-adversarial setting not only increases the probability of compromise but also reduces the tension and hostility that can get in the way of the parties rebuilding their relationship. Since a mediator is a conciliator, and not a decisionmaker, any "decision" is left to the parties, increasing the parties' acceptance and overall satisfaction with the outcome and providing the basis for rebuilding a fractured employment relationship.
Fifth, mediation's flexibility greatly expands the universe of possible solutions. The remedies available under Title VII of the Civil Rights Act of 1964, for example, are set forth in the statute. Mediation, on the other hand, can include issues not addressed and provide remedies not contemplated by the law, and tailor a settlement to meet the parties' needs. Mediators, by drawing on their experience resolving different disputes in a variety of situations, can also provide a wider array of possible solutions than an internal complaint system that is inherently limited by the organization's past practice. Moreover, unlike internal dispute resolution procedures, mediation can act as a "lightning rod" or "face-saving" device to speed needed organizational change. Finally, the mere fact that a mediated solution is not limited to simply responding to past wrongs, means that solutions can be fashioned to prevent future problems.
Sixth, mediation offers the parties more control over the process and outcomes than other methods of resolving employment discrimination claims. While there might be some pressure to mediate, there is less pressure to settle since the parties may still pursue the matter through the normal EEOC investigation process if the mediation is unsuccessful. In short, the parties are always in control. Consequently, mediation offers the parties a virtually no-cost method of resolving employment discrimination claims.
In the case of the EEOC mediation program, the theoretical advantages appear to be supported by the facts. The results of a comprehensive EEOC study of over 11,700 mediations involving over 1,600 employees and 1,500 employers released in Fall 2000 were encouraging and compared favorably to the findings reported in the EEOC's earlier pilot study:
* 65% of the cases in the national study were settled, compared to 52% of the cases settled in the pilot study;
* The vast majority of the employees (80% in the national study compared to 91% in the pilot study) and employers (87% in the national study compared to 93% in the pilot study) believed that the mediation process had been fair;
* Both employees (55% in the national study compared to 66% in the pilot study) and employers (63% in the national study compared to 72% in the pilot study) were generally satisfied with the mediated settlements;
* While the average time from the filing of the charge to the completion of the mediation in the national study was 97 days (compared to 67 days in the pilot study), it was still less than one-half the time of the traditional EEOC enforcement process; and
* An even greater majority of employees (91% in the national study compared to 84% in the pilot study) and employers (96% in the national study compared to 83% in the pilot study) indicated that they would try mediation again (1).
The findings have lent further support for the conclusion that mediation is an efficient and effective way to resolve employment discrimination disputes. More importantly, the results indicated the parties' acceptance that mediation may be the best way to resolve employment discrimination claims.
The EEOC ADR Program: Analyzing its Utility
While employers who have used the EEOC ADR Program have been pleased with the results, research has shown consistently that many employers who have not had any experience with mediation are hesitant to take that first step (2). Some employers are concerned that their willingness to mediate a discrimination claim would be misinterpreted as a sign of weakness and encourage a flood of non-meritorious claims. In particular, many employers have expressed the concern that settling a "frivolous" claim in mediation for some nominal amount (i.e., nuisance value) may be logical from a cost-benefit standpoint, but it may encourage other employees to file claims, creating a snowball effect. Given the way the system is designed, however, this may be less a problem than feared.
Patently frivolous discrimination claims are not eligible for the EEOC Mediation Program. Under the EEOC's "Priority Charge Handling Procedures" (PCHP), implemented in 1997, EEOC intake personnel classify complaints into one of three categories: "A" charges that will likely result in "reasonable cause" finding of discrimination, "egregious" cases and cases dealing with "unsettled" legal issues; "B" charges that will likely result in a finding of discrimination but require additional investigation; and "C" charges that will not likely result in a "reasonable cause" finding (1). Generally, only "B" cases are eligible for mediation (3). "A" cases may be mediated if both parties request mediation or the District Director and Regional Attorney agree that the case should be mediated (3).
Certain A or B charges are particularly amenable to resolution through mediation, including:
* those involving parties in an on-going relationship (e.g., discipline, terms and conditions of employment, harassment, promotion, wages, discipline and reasonable accommodation);
* those where mediation takes place promptly before the parties have hardened their positions;
* those charges that have not yet been sent to the EEOC investigation unit;
* those situations in which the parties are under some pressure to settle (e.g., time, unpredictable outcome, opportunity costs, etc.); and
* those situations where the parties have some leverage on each other.
Employment disputes that are generally not amenable to mediation, include:
* those involving an entire class of workers (systemic discrimination) or asking for class-wide relief;
* those involving a large number of very complex issues;
* those involving novel legal issues;
* those made by an individual who has a long history of making claims;
* those involving tangential persons or groups; and
* those situations where there are inadequate resources (e.g., money, placement opportunities, etc.) to effect a compromise.
This is not to say that the above conditions guarantee a certain result. Rather, it means that disputes with these characteristics increase or decrease the probability that the employment discrimination case will be resolved through mediation alone.
Preparing for an EEOC Mediation
If it is determined that mediation would be a good alternative to litigation, some preparation is still required. Indeed, the preparation for mediation, while less detailed, is not unlike what occurs prior to a deposition or trial.
First, the company should conduct an investigation of the matter. The investigation should be prompt, thorough and fair. Among the issues that should be considered are:
* Who is the most appropriate person to conduct the investigation?
* What are the key facts that must be pinned down (i.e., who, what, when, where, why and how)?
* What documents should be reviewed?
* Who should be interviewed and in what order?
* How should the information be recorded (e.g., interviewer notes, tape recording, personal statement, etc.)?
* What recommendations and action, if any, was taken?
Second, it is often helpful for the mediator if the organization prepares some type of pre-mediation position statement Whether it is something as simple as a memo or elaborate as a legal brief, it should contain the following information, at a minimum:
* Employee's date of hire;
* Employee's date of suspension or termination;
* Employee's position;
* Employee's rate of pay;
* A brief chronology of events;
* A concise statement of the organization's position; and
* Who will be attending the mediation.
Third, it is also helpful to submit the following documents to the mediator in advance of the mediation:
* Relevant sections of the organization's employee handbook/personnel policies;
* Employee's job description; and
* Employee's performance appraisals.
All of this information, of course, should be submitted to the mediator with the clear understanding that it is confidential.
Fourth, the company's counsel or human resource representatives should brief any company representatives who will be present at the mediation. Among the issues that should be covered are:
* an overview of the mediation process, including the role of the mediator as a facilitator rather than a decision-maker;
* the parties' tendency to begin with unrealistic bargaining positions, including a frank discussion about the strengths and weaknesses of the case;
* the different role of attorneys in mediation (advisors) and litigation (advocates);
* the mediator's use of caucusing, or meeting separately with the parties;
* the range of proposals that would be an acceptable resolution to the issue;
* the importance of patience, flexibility, open-mindedness, effective listening and a problem-solving approach; and
* a clear understanding of who has the authority to ratify an agreement
The EEOC Mediation Process
Each EEOC Office has an ADR unit that is responsible for administering the program. Typically, the ADR unit contacts the employee first and explains the mediation process (including confidentiality) and the advantages of mediation over the traditional enforcement process. The employee is then given 15 days to decide whether to mediate the dispute (3). If the charging party agrees to mediation, the employer is contacted and, like the employee, also has 15 days to decide whether to mediate the dispute (3). If both parties agree, the EEOC's investigation is suspended and the case is scheduled for mediation. EEOC mediations are generally scheduled, held and completed within 45 days after both parties agree to mediate their dispute (3). Mediators can be internal EEOC mediators, external contract mediators or others who serve on a pro bono basis. Regardless of the source, however, the EEOC requires that all mediators be experienced and trained in mediation and employment discrimination law. The goal is to complete the entire mediation process in less than 100 days (3).
Scheduled mediations are usually held at an EEOC Office or some other neutral or agreed-upon location. The mediation session begins with introductions and a description of the mediation process. The voluntary and confidential nature of mediation is stressed and everyone is asked to sign both a mediation agreement and a confidentiality agreement. Finally, the mediator will discuss the roles of the participants. As a general rule, the principals to the dispute are asked to speak for themselves. Attorneys, human resource staff, union representatives or other representatives are asked to act as advisors, not spokespersons. This ensures that the employer and employee will have a full opportunity to address their concerns and that the mediation will not degenerate into an adversarial confrontation over legal issues.
The mediation begins with both parties having a chance to tell their side of the story in a joint session. The employee usually goes first, followed by the employer. After both sides have had the opportunity to express their concerns, the mediator will often meet with the parties privately and receive additional information that the parties may have not wanted to discuss in the joint session. These individual caucuses also give the parties an opportunity to respond without appearing adversarial to the other side. Mediators use this opportunity to build trust with the parties and suggest creative solutions to their problems. A type of "shuffle diplomacy" then commences, with the mediator working with both sides individually to arrive at a mutually acceptable agreement. If the mediation is unsuccessful, however, the mediation file will remain with the ADR unit. The EEOC's investigation unit will not be informed that mediation was attempted and will only be forwarded a copy of the original charge itself.
Essential Elements of a Mediated Agreement
If an agreement is reached, mediators will generally assist the parties in drafting an agreement at the conclusion of the mediation. Typically, the employee agrees to withdraw his or her discrimination charge(s) and not institute a lawsuit based on the charge(s) in exchange for the employer's promise to take certain actions that will settle this particular dispute (e.g., apology, job reference, payment, etc). In addition, mediated agreements often include standard clauses stating that:
* the agreement does not constitute an admission by the employer that there has been a violation of the laws administered by the EEOC;
* the EEOC has the right to investigate compliance with the agreement;
* the agreement may be enforced in court;
* except in enforcement proceedings, the parties will keep the terms of agreement confidential;
* the employer will not retaliate against anyone as a result of the discrimination claim;
* an acknowledgement by the charging party that they have been advised to consult with an attorney and they have been given a reasonable amount of time (usually up to seven days) to consider the agreement before signing; and
* if the charge is based on the Age Discrimination in Employment Act (ADEA), the agreement must include a clause acknowledging that the employee must be given 21 days to consider the agreement and an additional seven days to revoke the agreement after it is signed (6).
Finally, most employers involved in mediation will want any settlement agreement to resolve all outstanding issues, not just the specific discrimination claims. The EEOC has made it clear, however, that a "global release" whereby an employee waives any and all claims he or she may have against the company must be in a separate agreement since it would, by definition, involve legal issues outside the EEOC's purview (3). The EEOC's Office of Legal counsel, however, suggests that such supplemental agreements can be incorporated by reference in an EEOC mediated agreement (3). Of course, any mediated agreement becomes an enforceable contract after it is signed by the parties.
There are many advantages in mediating employment discrimination claims. For employers and employees, mediation provides a more predictable outcome, saves time and money, and insures confidentiality and privacy. For the government, it allows the EEOC to enforce the myriad of employment discrimination laws under its jurisdiction with fewer staff while promoting greater public acceptance of civil rights. As a result, the EEOC ADR Program is proving to be a civil way to resolve most civil rights claims and a viable alternative to the EEOC's traditional enforcement process.
(1.) McDermott, E.P., R. Obar, A Jose and M. Bowers, An Evaluation of the EEOC Mediation Program, Washington, D.C.: The U.S. Equal Employment Opportunity Commission, EEOC Order No. 9/0900/7632/2, September 20, 2000, On-line. World Wide Web, at http://www.eeoagov/mediate/adr_report-
(2.) McEwen, C.A., An Evaluation of the Equal Employment Opportunity Commission's Pilot Mediation Program, Washington, D.C.: Center for Dispute Settlement, March 1994.
(3.) Mediation Desk book: Office Policies, Procedures and Guidelines, Washington, D.C.: EEOC Office of Field Programs, April1999.
(4.) Miller, S.P., 'The Future of Employment ADR EEOC Adopts ADR Methods," Dispute Resolution Journal 17, October December 1995, 2-10.
(5.) Peterson, R.B. and D. Lewin, "The Nonunion Grievance Procedure: A Viable System of Due Process?," Employee Responsibility and Rights Journal. Volume 4, 1990, 1-22.
(6.) Recordkeeping, Investigation, and Enforcement," United States Code, Title 29, 2002, Section 626(f).
(7.) "Statistics," U.S. Equal Employment Opportunity Commission, On-line. World Wide Web, http://eeoc.gov/stats/ index.html March 2003.
(8.) Turner, R, "Thirty Years of Title VII's Regulatory Regime: Rights, Theories, and Realities," Alabama Law Review, 46, 1995, 375-485.…