Mediation process for an EEOC charge
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Mediation process for an EEOC charge

Mediation can resolve an EEOC charge but its not binding

Some factors in deciding whether or not to mediate an EEOC charge: is it likely that we maybe did discriminate or at least take action that is difficult to explain? Would fighting the EEOC charge or would settling cause other problems within the organization? Does it make economic sense to mediate the EEOC complaint and resolve the matter rather than fight it on principle where it might not make sense to do so.

If you’ve got a situation where an employee left the company and they filed a EEOC charge, and all they really wanted was a letter of reference or a week or two more of severance, mediation might make sense. It is sometimes a good way to educate your company about the complainant’s position.

The EEOC charge mediation program
Just a word on the mediation program. The mediation program for an EEOC charge is free. It’s available at all the EEOC district offices. Not all state agencies have mediation.

It offers the opportunity to resolve an EEOC charge quickly before it becomes a lawsuit and before you even need to write a position statement.

Not every charge qualifies for EEOC mediation. The EEOC will first make a determination as to whether the charge is appropriate for mediation. 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 is seeking.

EEOC charges wholly without merits are not going to be eligible for mediation. If the EEOC goes ahead and determines that a charge is eligible, both the employer and the charging party have to agree to mediation. One can’t just decide and then the other has to go along with it.

Results of successful mediation of an EEOC charge
If the mediation is a success, the EEOC charge is dismissed and the parties may agree to a settlement that will preclude litigation. It will be formalized in a document and that will be the end of the story. If the mediation is unsuccessful, then the charge is going to be subject to the EEOC’s normal investigative procedures. You’d probably have to go ahead and submit your position statement, et cetera.

The mediation itself is not binding on the parties. It’s not a situation where the mediator is making a ruling or a decision. It’s just a mediator assisting in resolving the dispute between the parties.

Early mediation may allow you as 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 also may be able to resolve a matter without having to produce documents. And any information that a company does reveal during the mediation is going to be protected by the EEOC’s mediation confidentiality rule. I want you to always remember that that is a possibility. You wouldn’t use it in all cases but it is available to you.

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 February 04, 2009

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