Why am I going to mediation for an EEOC claim?
Well, for one thing, we might think about, is it likely that we did discriminate or we didn’t discriminate, but we took action that’s going to be hard for us to have a good story about the case or it’s going to be difficult to explain the reasons behind the EEOC claim.
Would disputing the EEOC claim or settling the matter cause other problems with employees? It doesn’t make economic sense for the company to resolve it rather than fight. Is it a situation where, say, a departing employee, really all they wanted was a letter of reference or a week or two more of severance, in that case, mediation might make good sense. So, you don’t have to go to the time and expense of putting together a position statement. Mediation is also sometimes a good way to educate yourself about the opposition in the EEOC claim.
A summary of the EEOC mediation program
It’s a free program. It’s available at all EEOC district offices and it offers the parties the opportunities to resolve an EEOC claim at the charge level quickly before it becomes a lawsuit, before the company even has to do a position statement.
Now, not every EEOC claim is going to qualify for EEOC mediation. The EEOC first needs to make a determination as to whether the charge is appropriate for mediation. They’ll look at factors like the type of charge that it is. The size and complexity of what they think to be the case and the type of relief that the person is seeking.
If the Commission thinks that an EEOC charge is wholly without merit, it’s not going to make that charge eligible for mediation.
If they do determine that the charge is eligible for mediation, both the employer and the complaining party have to agree to mediation. So, if one wants it but the other doesn’t, then the other party is out of luck, because both parties have to agree.
If the mediation is successful, namely, the parties strike a deal, then the charge is going to be dismissed and the parties may agree to a settlement that will ultimately preclude litigation. So, the EEOC won’t be able to sue and the complainant won’t be able to sue.
If the mediation is unsuccessful, then the EEOC claim is going to go back into the EEOC’s normal investigative procedures, namely, you’ll write your position statement and you’ll go forward that way.
Risks and Rewards
Mediation is not binding on the parties. The mediator is not making a decision or a ruling. Instead, it’s the body that is assisting in resolving the disputes between the parties.
Early mediation does allow an employer the chance to evaluate a claimant’s charge and hear some evidence supporting that EEOC claim without the usual expense of conducting discovery. Because in mediation, you may hear some things that aren’t written in the charge that may be helpful.
Early mediation is also sometimes a chance to negotiate with the employee before he or she has hired an attorney. Now, oftentimes, complainants or charging parties will bring attorney to mediations, but sometimes they don’t.
Additionally, with the EEOC mediation, an employer may be able to settle a claim without having to produce any documents and, you know, there may be some documents that you don’t want to produce because they may be helpful to the charging party’s case.
Any information that a company reveals during mediation will be protected by the EEOC’s mediation confidentiality rule.
It’s not for every EEOC claim. You might want to use it in certain circumstances to resolve a matter quickly or when you think a position statement is not appropriate.
These are the edited remarks from the Rapid Learning Institute webinar “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa Senzel, Esq. on Feb. 14, 2007
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