Your Partner in Workplace Solutions www.eeoc.gov
I haven’t done anything wrong. Why should I mediate?
Right-to-Sue Issued ● At the top of every dismissal issued by EEOC: “Dismissal/Right to Sue” ● Do you really want them to receive a Right to Sue? ● Solution: Early Resolution, Mediation the best opportunity
Potential Expenses ● Responding to a RFI: $5,000.00 to $7,500.00 ● Motion for Summary Judgment: $45,000 - $50,000 ● Litigation: $100,000.00 to $120,000.00
● Intake ● Mediate if no resolution... ● Investigate ● Litigate
Myth vs. Reality ● All resolutions do not “I’ll have to bring my include monetary checkbook.” relief ● “It’s expensive.” Least costly process available and parties have control
Frequent Non-Monetary ▸ Apology Resolutions ▸ Job interview ▸ Work accommodation ▸ Return to an available position ▸ Job placement services ▸ Neutral reference or letter ▸ One-on-one career development with HR
▸ Conversion of termination to resignation ▸ Stock options: buyback or accelerated vesting ▸ No contest of unemployment benefits ▸ Removal of counseling memo ▸ Sensitivity training ▸ Free tuition ▸ Transfer/shift change Frequent Non-Monetary Resolutions
Myth vs. Reality ● “We’ll have to settle All issues and claims may be resolved if each issue or claim the parties agree. filed separately.”
Part articipants res resol olve “w e “whatever er t they ey want” t”
Global Settlements ▪ Union grievances ▪ ERISA issues ▪ FMLA issues ▪ Common law claims ▪ State statutory claims ▪ ... any other claims
More Myths vs. Realities ● “It won’t settle.” 69% of cases mediated successfully resolved ● “It’s an admission of No admission guilt.” ● “Must conduct a full Minimal investigation internal needed to mediate investigation first.” ● “I’ll have to pay an Attorney representation is attorney to represent optional me.”
More Myths vs. Realities ● Charging party “EEOC will dismiss the charge, and all receives Right to Sue notice my problems will be and workplace over.” problem still exists ● Employers report “Settling one charge fewer charges filed due leads to another.” to mediation
Mediation vs. Investigation Outcome within 90 Days Settlement Case Closed Mediation Conference No Settlement Return to Investigation Parties Opt For Mediation Intake Investigations Presently No Cause Records Reviewed Average 6 Months Charging Party Right to Sue Witnesses Interviewed Case On Site Visit Investigated Fact finding Conference Cause Subpoenas Issued Conciliation Successful Conciliation Unsuccessful Case Closed Conciliation EEOC Sues Charging Party Suit Matter of Public Record Right to Sue Litigation may take 4 Years or more
● Informal ● Voluntary ● Confidential ● Neutral
● Is conducted face-to-face ● Representatives allowed (but not necessary) ● Includes private caucuses ● Usually lasts 3 - 5 hours
● Open and honest communication ● Relaxed and informal ● Active listening ● Focus on resolution ● Mutual ownership of outcome
What They Will Do ● Be impartial ● Mediate in good faith ● Maintain confidentiality ● Maintain integrity of the process
What They Won’t Do ● Force or impose settlements ● Unfairly influence a party ● Give personal or professional advice ● Unnecessarily prolong the process
Prepare Your Thoughts ● What made this happen? ● What is important that the other side may not understand? ● How can you avoid this in the future? ● Are you looking at the problem from all sides? ● What do you want? ● How would you like to see this resolved?
Assess the Issue ● Get the facts. ● Talk to witnesses. ● Collect pertinent documents. ● Evaluate strengths and weaknesses. ● Explore options for resolution.
● Decide who will attend: ▸ Individual with settlement authority ▸ Individual with knowledge of the issue ▸ Legal representative? ▸ Don’t stack the deck. ● Come with realistic options. ● Come prepared and ready to learn new facts. ● Be flexible and open. Don’t get entrenched.
● Give feedback and ask questions. ● Identify your underlying interests. ● Ask “Why” and “What if” questions. ● Try to see the other party’s point of view. ● Brainstorm options. ● Focus on areas of agreement. ● Consider what happens if mediation fails.
● Establishes a company’s interest in mediating appropriate charges ● Mediation is still voluntary - Any party may decline to mediate any charge. ● Establishes points of contact for company & EEOC ● Expedites scheduling the mediation conference
Employers with National UAMs FORD MOTOR COMPANY Albertsons, Inc. Frito-Lay Tyson Foods, Inc.
Quo uote tes f s from om Cus Custome tomers rs “As an employer’s attorney, I routinely recommend mediation to my clients. In mediation, you can build a sense of what the issues are, learn the problems, explore possible options for resolution, and make informed decisions. . .It makes both business and economic sense from the employer’s perspective.” Charles C. Warner, Esq. Porter Wright Morris & Arthur LLP
Quo uote tes f s from om Cus Custome tomers rs “Hopkins is striving to be an employer of choice. We think that participating in EEOC’s mediation program moves us that much closer to meeting that goal. . . We learned that settlement is not always about money. Sometimes there are non- economic ways to settle a case that may be important to the charging party and the respondent.” Laurice Royal, Esq. Johns Hopkins Health System Corporation
Customer Survey A study revealed... Participants would use EEOC mediation again, regardless of mediation’s outcome ▪ Employer 96% ▪ Employee 91% – See www.eeoc.gov for full survey report
Int nterested i in S n Serving a as s a Pro B o Bono ono Me Mediator? If you’re interested in serving as a Pro Bono / Volunteer Mediator for the EEOC St. Louis District contact the ADR Coordinator by e-mail at maria.schulte@eeoc.gov No Salary or Per Diem - valuable experience The EEOC St. Louis District ADR Program is also in the process of setting up a law school internship program
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