Employment Mediation At The EEOC And DFEH:
The Models and the Opportunities
M. Viera, Esq.
The numbers of discrimination
claims against employers filed with federal and state agencies continues to grow. In
2002, discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) hit a seven-year high at 84,442. In 2001 in California alone, 18,221 complaints were filed with the state Department of Fair Employment and Housing (DFEH). Typical complaints included sex harassment, race harassment, discrimination based
on various protected categories and retaliation.
These claims create major
time and resource drains for HR professionals and managers. The full cycle of investigating, responding to and resolving these
claims often involves the commitment of financial and managerial resources that organizations can ill afford. This does not even take account of the often strong emotional consequences that can occur for the accused
manager or employee and the corresponding low employee morale of those affected. When
faced with these challenges, an organization’s response may seem limited to a monetary settlement or a full litigation
Fortunately, there is another
way. Many employers have not yet experienced the EEOC or DFEH’s mediation
programs which have become more prevalent in recent years. To assist HR professionals
tasked with responding to discrimination complaints, this article describes the mediation processes of these agencies and
why it is often beneficial for employers to take part.
The EEOC/DFEH Mediation Processes
Mediation is a form of alternative
dispute resolution and is completely voluntary at both the EEOC and the DFEH. Generally,
within a month of receipt of the discrimination charge at the governmental agency, the case is referred to mediation. Both the complainant and the employer receive telephone calls asking them if they
would like to participate in the agency-sponsored mediation program. Mediation
is free to both parties. Either party may bring an attorney.
The mediation occurs very
early on in the complaint process prior to expenditure of much money on either side.
Agency-sponsored mediation occurs before legal discovery whereby an exchange of documents and requests for information
are made. In fact, mediation is offered before the defendant-employer is even
required to respond to the facts in the complaint.
If either party declines
mediation, the complaint is returned to the enforcement division. The employer
must respond within a specified number of days, and the complaint is processed and a determination as to its merits is made. This process may take six months to a year because of the back log of claims currently
before each agency. Often, prior to a determination on the merits, the EEOC or
the DFEH will issue the complainant a right-to-sue letter, which allows the complainant to file a lawsuit against her employer. Even if the parties initially reject mediation, they may voluntarily request it at
any time during this administrative process.
What Occurs At The Mediation
Once the parties agree to
mediation, the mediator and the parties (and their attorneys, if applicable) meet in a single room to begin the joint session. Generally, the mediations are scheduled for four to eight hours, but may go longer
if progress is being made.
The mediator opens the joint
session with an introduction to the guidelines of mediation and an overview of what will happen during the session. Generally, each side gives an opening statement in the other’s presence – sometimes the attorneys
speak and sometimes the parties themselves explain their side of the story. The
mediator asks questions to clarify what happened, what each party’s role was, how each party felt, and what each party
wants out of the mediation. The mediator’s role is to facilitate communication
between the parties, help each side see the strengths and weaknesses in her own case, assist parties if impasse
is reached and actively promote settlement.
If settlement occurs, the
mediation concludes with a legally enforceable contract and the matter is fully resolved.
If settlement does not occur, the complaint is referred back to the EEOC/DFEH enforcement division and the employer
then formally responds.
Mediators And Mediation Styles: How The Mediation Is Conducted
Mediators are often trained
attorneys, however they differ from judges or arbitrators in that they remain neutral to both the parties and the dispute. The mediator does not decide who is right or wrong; instead, she works with the parties
to find a settlement amount or other creative solution that satisfies both of them.
In the dominant mediation
model, after the initial joint session and opening statements, many mediators separate the two parties into different rooms. This is called caucusing. When caucusing,
the mediator speaks with one side for a period of time, then speaks separately with the other side for a period of time. She actively encourages settlement in a variety of ways as she moves back and forth,
carrying information between the two rooms. From the parties’ perspective,
they may enjoy the privilege of an open dialogue with the mediator which may be kept confidential from the other side (depending
on the mediator). However, there are long delays while the mediator is not in
the room. The parties never hear what the mediator discusses with the other side. Usually, the parties never see each other again until it is time to sign the settlement
agreement. Instead they bargain for what they want through the mediator.
In the facilitative model,
mediators keep all parties in the same room for the entire mediation. Mediators
who use this style prefer to have the parties, not only the attorneys, actively engage in the mediation discussion. Facilitative mediators tend to believe that since the parties have lived with the dispute for some time,
they are the “experts” and likely have the best ideas of the types of solutions that will create resolution.
Mediators also keep the parties
in the same room because this allows for potentially transformative experiences between them.
Often, great anger has built up between the parties as the conflict has developed and, unless expressed and addressed,
there may be little opportunity for truly creative problem-solving. Having the
parties hear each other’s side of the story can create greater understanding and bring emotional closure to the dispute. Better resolutions can be crafted with both parties working together, rather
than working apart.
Why You Should Consider Mediation
Mediation has become a standard
part of employment law litigation, whether it is governmental agency-based (before a lawsuit is filed) or privately chosen
(parties pay for mediation after the lawsuit is filed). Since each dispute is
different, it is recommended that you consult with your legal counsel prior to deciding if mediation is in your best interests.
Mediation benefits employers
in multiple ways. Its primary benefit is that it opens the channels of communication
between the parties early in the legal dispute process. Employees file employment
discrimination complaints because they feel they have been treated unfairly, yet they have not always given their employers
or managers a chance to explain the situation fully. Mediation provides an opportunity
for face-to-face communication, for venting of emotionally charged feelings, for clarification of misunderstandings and for
delving below the surface dispute to what really matters to the parties. In pre-litigation
mediation, this occurs before each side has become entrenched in their legal positions.
This can be especially useful where the employees engaged in the dispute will continue to have some form of an on-going
Mediation also allows for
more creative solutions than litigation. Because each party is given the opportunity
to state what she really wants, resolutions can range from apologies to creative termination agreements, from outplacement
assistance to monetary payments. The primary litigation resolution is monetary
payments which may not always satisfy either side fully.
Mediation is more cost-effective
and efficient than litigation. Because agency mediations generally happen early
on in the legal process, little has been invested by either side in attorney’s fees, discovery costs or protracted legal
maneuvering and thus less may be expended to resolve it. Statistics show that
early mediation settlement amounts are typically less than litigation settlements, both of which are less than jury awards. Of course, one downside to the lack of discovery is that the complainant does not
have all the information available and so may believe that her case is worth more than it actually is. Mediation provides a chance to educate the complainant and receive information from her, but may sometimes
be too soon for some complainants to give up the fight. However, where mediation
works, it can resolve a dispute in a single day rather than over the course of years.
At the EEOC, the DFEH and
in many states, all that is said or written in preparation for or during mediation remains confidential and cannot be used
in any litigation proceedings that follow. This is beneficial to employers and
complainants because it avoids publicity around the claims made and encourages greater sharing of information that will help
resolve the dispute.
reached at mediation do not constitute an admission of fault by the employer or the employee.
There is the opportunity for both sides to achieve a “win-win” rather than a “win-lose” agreement.
Lastly, at EEOC and DFEH
mediations, many complainants do not bring and have not yet contracted with attorneys.
This may be helpful in reaching resolutions that are of a less legal nature since data show that, in the case of harassment,
many employees often only want an apology and for the behavior to stop. As an
employer, you might choose to attend a mediation without legal counsel in the hopes of achieving this type of informal, less
costly settlement solution.
Some potential drawbacks
to mediation include the concern that the availability of mediation encourages disgruntled employees to file frivolous complaints. Some employers also feel that agreeing to mediate, rather than continuing to litigate,
is a sign of weakness and sends the message that the employer is willing to pay something.
In cases where the employer is certain that the complainant’s case has no legal merit, it may not make sense
to mediate. In addition, the lack of information on both sides may be a disincentive
to mediate early, since neither party has a clear idea of the value of its case. Some
participants, of course, see this as a benefit which can lead to earlier settlement.
Ultimately, when faced with a decision regarding mediation, an HR professional or an employee should consult with legal
counsel and weigh the benefits and drawbacks of mediating that particular dispute.
How To Prepare For Mediation
As an HR professional or
manager preparing for or involved with mediation, review the following tips to help ensure a more satisfactory resolution:
- Know the facts: review the complainant’s and accused
employee’s personnel files, any investigatory report, disciplinary documents and organizational policies and practices
prior to attending the mediation.
- Bring documentary evidence that will support your case, even if you choose not to show it to the opposing
- Talk to the complainant’s manager or anyone else involved in the case. Gather as much information as you can that might assist you in achieving resolution.
- Come prepared to give an informal opening statement in which you present your organization’s side
of the story.
- If your organization is representing the accused employee/manager, decide before if that person will speak
and what he/she will say. Although he/she is not required to attend, think about
whether it would be helpful in resolving the matter (e.g. if he/she apologized to the complainant, would that help settle
- Have decision-makers attend the mediation: Each party must
have someone who can sign the legally-binding agreement if resolution is reached. If
no settlement is possible at your organization without the ratification of a high-level executive, ensure that this person
is available for signing as needed through out the mediation.
- Consult your in-house counsel or representing attorney prior to opting for or attending mediation. Determine whether to bring your attorney with you.
- Know your settlement range and what other options you can offer the complainant.
- Bring a sample settlement agreement with you to the mediation so that all clauses you may want included
are available. If possible, bring the agreement on a laptop computer so that
you can draft the final provisions at the end of the mediation. The EEOC and
DFEH also have sample settlement agreements available.
- Think strategically, but also come with an open mind. This
is an opportunity to achieve creative resolution and save your organization a tremendous amount of money and time, not to
mention publicity. All these translate into higher employee morale, savings to
the organization and better use of resources.
- Think about how mediation affects your organization on a larger scale; consider providing training to
internal HR and legal professionals on successful mediation strategies and techniques.
For more information on the
EEOC and DFEH mediation programs, please visit the following web sites: www.eeoc.gov and www.dfehmp.ca.gov.