So the worst has happened, and an employee or job applicant has decided to take legal action against your organization for – supposedly – discriminating against him or her.
You sigh. Now you’re in for months or even years of adversarial, expensive proceedings with the EEOC and/or in court. Things look bleak.
But wait. Don’t start counting the sleeping pills in the drawer of your night table yet. The case doesn’t have to waste a lot of time and money, and cause a lot of bitterness. There is a possible out: EEOC mediation.
What it is
Well, it’s not a formal investigation, and it’s not a court. It’s not even binding on the employer or employee – unless they reach an agreement on the dispute that both sides are OK with.
Here’s what happens: Most times, after an employee files an EEOC charge, the agency will suggest to both employer and employee that they sit down with a mediator. This is a specialist third party who’s seen dozens of employment discrimination disputes, and can recommend a number of ways of voluntarily solving the disagreement. Both parties have to accept mediation for it to take place.
The mediator’s magic, according to experts who have attended mediation sessions, lies in his or her ability to back the parties off their initial positions, which are usually both firmly held and emotionally fraught, and get each side to see the other’s point.
The EEOC says the typical mediation session lasts just three or four hours. If the parties reach agreement through mediation – sometimes a simple apology is enough to do the trick! – the process ends. A written agreement is signed by both sides, and becomes an enforceable document.
Less time, expense
The EEOC says mediation, when it works, usually takes less than three months to settle a case – compared with the months or years that a resolution may take when the case goes through the full EEOC process and/or the courts.
There is no cost to attend the mediation session, although you’ll likely have costs associated with it, such as for lawyers to help you prepare. Experts estimate the cost of mediation somewhere in the low four figures, a very economical price tag compared with the alternatives. (There could be additional costs if, say, an employer undertook to pay an employee money as part of the agreement.)
Either or both parties can bring lawyers to the session, and the mediator will decide what role they should play.
Experts on mediation point out that there are many advantages associated with it, beyond the savings in time and money.
Among these advantages:
- No fault. The mediator’s job isn’t to determine the guilt or innocence of either employer or employee. It’s to try to find enough common ground on which to base an agreement.
- Confidentiality. The parties sign an agreement that the mediation will remain confidential. This means nobody – not other employees, not even EEOC investigators – will get a look at the information produced during mediation.
- Calming influence. It’s axiomatic that an angry employee is the employee who’s likely to cost you the most money in an employment discrimination dispute. The mediation process helps remove anger and bitterness from the equation.
- Information on workplace conditions. One employee’s grievance may be a grievance waiting to happen for others. Suppose a female employee complains that a certain supervisor mistreated her. You learn during mediation that he’s also mistreated other women who haven’t yet complained. This knowledge may allow you to deal with him and head off further complaints.
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