By John V. Berry, www.berrylegal.com
This is an article regarding the Equal Employment Opportunity (EEO) mediation process for both federal and private sector (and some state/local) employees. Our law firm represents these types of employees in discrimination, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and/or individual federal agency EEO offices. Many private and public sector discrimination or sexual harassment cases that are filed through the EEO process proceed to mediation, but each has slightly different processes and procedures depending on whether your employer is federal sector or private sector.
This article discusses the EEOC mediation process and the potential benefits associated with engaging in that process for both parties involved.
What is the EEO Mediation Process?
Mediation is a voluntary procedure in which both parties attempt to avoid litigation and attempt to informally resolve a complaint through meeting. Once an EEO / EEOC complaint / charge or other appeal has been filed, the parties are generally offered the ability to go to mediation. If mediation is agreed upon by both parties, then a mediator is assigned to mediate the dispute.
The mediator assigned to the EEO dispute does not determine who is right or wrong in the dispute and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by the EEOC or a federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.
Who Attends the EEO Mediation Session?
Usually, once the mediation session is scheduled, both parties and their lawyers will attend, along with the mediator. Sometimes, the employer and the complainant just attend and attempt to talk directly with the mediator. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible.
How Does the EEO Mediation Process Work?
The EEO mediation process is a form of alternative dispute resolution (ADR). Typically, the parties at a mediation will meet at a location assigned by the EEOC or at a federal agency’s EEO office, and it will usually held in a conference room. The session will usually last a day, but can last longer if needed. Once the mediation session begins, a mediation proceeding can vary (based on the personality of the mediator and of the parties) but the process usually will proceed as follows:
1. The mediator will provide a copy of the mediation agreement, if not previously completed. The parties will sign the agreement to mediate. The mediation agreement will ensure that any discussions at mediation, stay at mediation and are held 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 and invite any questions before the session begins. The mediator may also provide helpful information about how she or he likes to run such proceedings.
3. Usually, the parties will each provide an opening statement about their position in the case; often it is helpful for the complainant’s side to explain how they feel that they suffered discrimination, sexual harassment, or retaliation. Following the first opening statement, the other side will provide their view of the claim and how they feel about the complaint that was filed.
4. The parties will then usually discuss the EEO complaint and the merits of the complaint and any employer defenses. The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.
5. The parties may then discuss resolution or the parties may be separated by the mediator in separate meetings (normally called caucuses). A mediator may go back and forth between the parties discussing proposals and responses from each side to the other side.
6. The mediator will then, to varying degrees, attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want. Sometimes this occurs, and sometimes this does not.
7. If a settlement terms are agreed to, the next step will be to reduce the agreement to writing.
Written Settlement Agreement
Following the verbal agreement between the parties agreed to at mediation, a written settlement agreement is prepared and entered into the record. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys. The agreement will bind both parties to a resolution and the agreed to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO/EEOC complaint will be then withdrawn as part of the agreement in most cases.
According to EEOC statistics, the settlement rate at mediation was approximately 72%. A binding written agreement at the EEOC or through a federal agency’s EEO office can be enforceable in court if a party does not live up to their side of the settlement. In sum, we consider it a victory if both parties can resolve a case and save the time and expense of further litigation through resolution.
If Mediation Doesn’t Result in Settlement
If mediation does not resolve a case, then the parties will revert to the investigative process, where both the employer and complainant will retain their rights to have the matter investigated. The investigative process here varies for private sector and federal employees. For private sector (and some public sector cases), the EEOC process may be taken up by the EEOC or the individual will receive a right to sue letter. For federal employees, they will then have the initial option of proceeding to an administrative hearing (this is generally recommended) or one can request a final agency decision (FAD), which is an internal decision by the federal agency on the claim of discrimination. The court process, if needed, can then follow.
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.
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.