EEOC Mediation

Ginger P

I've received an "Invitation to Mediate" to a recent EEOC Discrimination Charge. Our position statement will be very clear that we did not discriminate against the Charging Party. Is there any reason that I should accept Mediation rather than just sending in our Position Statement?

HR in Okla

I'd like to hear other's experiences on this. I went naively to mediation on my first EEOC charge knowing we had not discriminated. However, the former employee showed up with an attorney that neither I nor the mediator knew about. I have since learned that I had the right to call it off until I had an attorney present also, but because I knew we were "in the right" I went forward. It began with demand for an exhorbitant amount, finally negotiating down to about 3 months pay and a letter of "reference." The person had only worked a short time and I wrote a letter verifying dates of employment.

It was a great learning experience; but if I had it to do over, I would have refused mediation until we were represented by counsel too.

Ginger P

That's exactly the scenario I want to avoid. My experience is that "mediation" means "settle with a certain amount of money". I'm not interested in settling, I'm interested in the EEOC finding "no cause". thanks for your input. I'm not going to mediation.

System

Just remember that the EEOC issuing a "no cause" Notice of Right to Sue offers you absolutely nothing except self-satisfaction. There's a reason it's called a "Notice of Right to Sue" -- the employee still has every right to sue, and almost certainly will.

The point of mediation for many is to avoid a protracted, expensive litigation. You should at least talk to your employment lawyer to get a realistic estimate of how much it will cost you to litigate and whether it would be more cost-effective to come up with a token settlement up front. Then, if you decide to stick to your principles and refuse mediation, at least you know what you're risking going in.

Julie Athey
Senior Attorney Editor
M. Lee Smith Publishers

System

I would encourage you to rethink your position about not attending the mediation. Before I came to work for M. Lee Smith Publishers, I used to litigate employment discrimination cases and I always took full advantage of any "mediation" or "conciliation" that the EEOC offered. Not only is this a chance to settle the case for substantially less than it would cost to litigate it, it is an important glimpse into the charges that are being brought against you by this employee.

If you know you do not want to settle the case, think of it as a free discovery/fishing expedition. You can use the opportunity to find out as much as possible about the employee's claims. This information will help you prepare a response to her lawsuit, if she files one, and let you know which of your employees are involved so that you can talk to all of them BEFORE the case goes to litigation.

Keep an open mind about the mediator, also. They have been doing this long enough to know when a case is a loser, and often they will exert their influence on the employee to drop the frivolous case, rather than on you. Nevertheless, you should discuss the case with your counsel before going to mediation and consider whether there is a "nuisance amount" you would be willing to pay. Remember that you are in control. The mediator cannot force you to settle the case, it is entirely up to you.

CuriousG

My experience with using "mediation" as a fishing expedition is not good. For one thing you are expected to come to the mediation conference ready to negotiate in good faith. If you have no intent of settling and just want a peek at the other side's case it quickly becomes apparent what you are up to and you have now placed the EEOC squarely in the corner of "the other side", whether the facts of the matter would do so or not.

The purpose of mediation is to work out a settlement of the claims. It begins with the assumption that there is some merit to the claim, before any real investigation of the allegations takes place. While a mediated settlement usually will allow an employer to avoid admitting violation of the law, still the foundation of mediation presumes some level of culpability.

I agree that mediation is useful where the anticipated duration and cost of litigation are protracted and high. If you can present a reasonable settlement offer, you might even find the EEOC mediator advocating for you with the claimant. This also will serve well to establish what might be a reasonable judgement should the case actually have to be litigated.

EEOC mediation is not to be taken lightly. Where it makes sense it should be entered into in full faith and confidence. Where you intend to stand on principle, or feel the precedent outweights the potential cost then politely decline mediation and move on with the complaint investigation.

Margaret Morford

I also would encourage you to to seek the counsel of an employment lawyer and would agree with Julie Athey that mediation can bring an end to the lawsuit. However, if the facts are really in your favor, some of my clients will push for a "No Cause" finding because (1) it discourages a plaintiff's attorney from taking the case if the EEOC sees no merit (2)the company gets a reputation among the plaintiff's bar for being hard to prevail against (3) it sends a message to all employees that the company won't pay nuisance money so it discourages other employees from filing frivolous charges. The key is that the company has to win each one they choose to fight for this strategy to be successful. Pick the charges you are willing to go the distance on carefully. If there is some fault on the part of the company, mediation may be the way to go. If you have any questions, please feel free to call me at 615-371-8200.

Margaret Morford

Theresa Gegen TX

My clients have had pretty good results with EEOC mediation early on. Even if your company did nothing wrong, resolving the matter early on and for minimal expense might be in your company's best interest. I think before you reject mediation out of hand you should let your employment attorney review the case and give you an opinion about whether there is any case. You can go to mediation without an attorney or bring an attorney. But at a minimum you should go prepared with legal arguments and facts. An attorney can help you prepare.

One caveat, if you are absolutely sure that you are going to offer nothing (and I mean nothing), then don't waste everyone's time. Even if you go just to offer the employee one or two month's pay (to help them get back on their feet), it is not a waste of time.

Good Luck!

attyinaz

I am in Arizona and I would never mediate here. Here, the mediators are also the investigators. That doesn't sit right with me. I have been in other states and have used mediation, but it does mean paying money.

ks1

I strongly urge you to take advantage of the offer to go to mediation. There is one caveat accompanying this, however: Make sure your representative is your HR lawyer or legal counsel. Obviously, if you have outside counsel it will cost you to do this. The EEOC (or state human rights commission) does not charge for these mediations, however. I have had two experiences with this. In one, the employee was fired for sexual harrasssment and there was no way we were changing our position. But I was incredibly curious as to what the employee's version of the story was going to be (he already had a lawyer and had made open records requests, threatened a lawsuit, etc.). I made it clear to the EEOC investigator that our evidence was strong and that we would NOT be making an offer to rehire or pay a settlement. She indicated that was not required. We agreed to the mediation, and the complainant, the former employee, did not. That is the last we have heard from him. In another case, an employee of several years stopped showing up for work and filed an EEOC charge (race)after she was not automatically placed into a higher-level position created in her division, but was offered the opportunity to apply for the position. At the mediation, we stressed how much we wanted the employee to return to her job and how we valued her skills, while mentioning that she had not even applied for the higher level position. The employee ended up sounding so unreasonable that the mediator became our advocate, pointing out to the complainant that she was walking away from a job that paid more than she (the mediator) was making with a Ph.D.
So, go because you can get free discovery. Go because it makes you as the employer look reasonable and open to solutions short of litigation. Go, and take a lawyer, or send a lawyer.

HR in Okla

Thanks everyone. I learned a lot from everyone's postings. Maybe I got off cheap after all. In the mediation I went to, the mediator separated us after the initial statement and there was little information presented that would have been useful to me in court.