Mediation can be quick and cost effective remedy to an EEOC claim, but is has its drawbacks too
- Did the company take some discriminatory action to justify the EEOC claim or did we take action that was not discriminatory but that’s going to be difficult for us to explain in a compelling way
- Would fighting the EEOC claim the matter cause problems with other employees or would settling the matter cause problems with other employees?
Now, only you would know in your workplace what was going to happen but still something to keep in mind.
- Does it make economic sense for your company to resolve the EEOC claim promptly rather than fight it?
If you’ve got a situation for example, where all a departing employee really wanted was a letter of reference or a week or two more of severance, mediation really might make sense. It sometimes is a good way to educate yourself about a complainant’s position.
- Whats the cost to mediatate the EEOC claim?
It’s free. It’s available at all EEOC district offices. And it does offer parties the opportunity to resolve an EEOC claim at the charge level pretty quickly before it has the possibility of becoming a lawsuit.
- What claims qualify for mediation
Not every EEOC claim qualifies for mediation. The EEOC first makes 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 charging party is seeking.
If the EEOC gets a charge that they consider to be wholly without merit, it will not be eligible for mediation. If the EEOC does determine that a charge is eligible for mediation, both parties, the employer and the charging party have to agree to mediation before it proceeds.
- What happens if there is a successful mediation of the EEOC claim?
The charge is dismissed and the parties may agree to a settlement that will preclude litigation. If it’s unsuccessful, the charge goes back and it’s subject to the EEOC’s normal investigative procedure which typically probably means at that point, “Hey, you should prepare a position statement.”
- What are the risks in mediating an EEOC claim
The mediation itself is not binding on the parties. The mediation is not making a decision or issuing a ruling of any kind. But instead, it’s just assisting the parties in resolving their dispute.
Early mediation has its place. It definitely can allow a company the chance to evaluate a claimant’s charge and hear some of the evidence supporting the claim without the usual expense of conducting discovery that could happen in litigation.
Early mediation is also sometimes a chance to negotiate with an employee before he or she has hired counsel. Additionally, with EEOC mediation, an employer may be able to settle a claim without having to produce any documents, which is always nice. The less you have to go out and produce, the better. So any information that the employer does reveal during mediation is going to be protected by the EEOC’s mediation confidentiality rule.
In some circumstances, it is an advantageous way to go; you can resolve things quickly; you do learn about the other party. But it’s not for every situation.
Edited remarks from the Rapid Learning Institute webinar: “In EEOC’s Crosshairs? How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel on 8-5-08
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