Monday, January 1, 2018

Mediation at the EEOC

By John V. Berry, www.berrylegal.com

We represent employees in cases at the Equal Employment Opportunity Commission (EEOC). Many private and public sector discrimination or sexual harassment cases that are filed at the EEOC go to mediation, under slightly different processes. This article discusses the mediation process at the EEOC and the benefits and issues associated with that process.  

What is Mediation?

Mediation is a voluntary process in which both parties attempt to avoid litigation and attempt to informally resolve a complaint. Once an EEOC complaint / charge or other appeal is filed, the parties are offered the ability to go to mediation. If mediation is agreed upon by both parties, then a mediator is assigned.

The assigned mediator does not decide who is right or wrong and has no authority to impose a settlement on the employer and complainant. Instead, the EEOC mediator attempts to assist the parties in exploring and resolving their differences. There is also no fee for mediation as it is a benefit provided by the EEOC to resolve cases.  

Who Attends the Mediation

Typically, once the mediation session is scheduled, both parties and their attorneys can attend. Sometimes, the employer and the complainant just attend. It is very helpful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible.  

How Does Mediation Work?

Typically, the parties at a mediation will meet at a location assigned by the EEOC. Once there, a mediation proceeding at the EEOC can vary, but the process usually will proceed as follows:

1. The mediator will provide an agreement to mediate, if not done before. The parties will sign the agreement to mediate. The agreement will ensure that any discussions at mediation, stay at mediation and are confidential (they can't be used later in litigation if settlement does not work).

2. The mediator will explain the process of mediation to the parties.

3. Usually, the parties will each provide an opening statement about their case. 

4. The parties will usually discuss the case and the merits of the complaint and any employer defenses.

5. The parties may discuss resolution or the parties may be separated by the mediator in separate meetings (normally called caucuses). 

6. The mediator attempts to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want.  

7. If a settlement agreement is reached the case is resolved.

Written Settlement Agreement

Following an agreement between the parties, a written settlement agreement is prepared and entered into the record. The agreement binds both parties to a resolution and the terms of the settlement (e.g. backpay, promotion, attorney fees). When the settlement agreement is signed, the EEOC complaint will be withdrawn. According to the EEOC, the settlement rate at mediation was 72%. A binding written agreement at the EEOC is enforceable in court if a party does not live up to their side of the settlement. 

If Mediation Doesn't Work

If mediation does not work out, then the parties will revert to the investigative process, where both the employer and complainant will retain their rights to have the matter investigated. In sum, it is a generally a good idea to attempt to mediate prior to litigating a claim. Many cases are often resolved. However, if this is not the case, then each party may resume the investigation and litigation process.  

Conclusion

If you need assistance with filing a claim at the EEOC, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on our Facebook page.

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