Mediation and the EEOC complaint

Mediation can be a fast and effective way to resolve an EEOC complaint

Mediation Decision Factors
Some factors you might want to consider in the decision of whether or not you’re going to mediate the EEOC complaint are, is it likely that the company did engage in some inappropriate conduct or they didn’t, but they took action that’s going to be very difficult to explain and to clear up

Would fighting this EEOC complaint or would resolving this matter cause other problems with current staff? Does it make economic sense to settle the EEOC complaint rather than to fight? Is it a situation where you could spend tons of time on a position statement? It’s going to use a lot of your resources and a lot of your time, but the reality if you think you can mediate, be done quickly, everyone will be relatively happy at the end of the day and so mediation may make good sense.

If you’ve got a situation where a departing employee filed an EEOC complaint and what they’re really asking for is a letter of reference or a week or two more of severance, something like mediation really might make sense.

Mediation could be a good way to educate yourself about the complainant’s position.

Mediation as part of the EEOC complaint process
The EEOC’s mediation program is free. It’s available for all EEOC complaints at all EEOC district offices. Again, it offers parties the opportunity to resolve claims at the charge level quickly before they become a lawsuit.

Now, not every EEOC complaint qualifies for mediation. The EEOC will first make a determination as to whether the charge is appropriate for mediation. And they’ll look at factors such as the type of the charge, the size and complexity of the case and the type of relief that the claimant is seeking. If a charge is considered wholly without merit, then the EEOC is not going to make it eligible for mediation. Before you can go to mediation, both sides, both the employer and the charging party have to agree to go to mediation.

Mediation and resolution
The good news is, if it’s successful, the EEOC complaint is dismissed and the parties, typically, agree to a settlement that precludes litigation. So, there’ll be a relief and a waiver and all of those good things. If a mediation is unsuccessful, then the EEOC complaint goes back into the EEOC’s normal investigative procedures. So, then you would do a position statement and you go through the regular channels.

A mediation is non-binding. If it doesn’t work out, it doesn’t work out. And the mediator, him or herself, does not make a decision. It’s not a ruling like a judge would make or an arbitrator, but instead assist in letting the parties resolve the dispute among themselves.

Early mediation, in some cases, it’s a good thing, because it can allow a company the chance to evaluate a claimant’s charge and hear the evidence supporting the claim without the usual expense of conducting discovery You get a lot of information that you might not otherwise get until a lawsuit stage.

It’s also sometimes a chance to negotiate with an employee without them having counsel. Some employees hire lawyers right after the EEOC complaint is filed and then a lawyer would be at the mediation, but sometimes employees come to those unrepresented. You may also have the opportunity to settle claims without having to produce documents and that may be good for you, because there may be certain documents you don’t want to produce. All of this is done under the EEOC’s mediation confidentiality rule.

Edited remarks from the Rapid Learning Institute webinar: “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel, Esq. on 2-7-2008