The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces US laws against job discrimination or employment based on a person’s race, religion, color, sex (including pregnancy status), national origin, age (over 40), disability, or genetic information.
EEOC staff offer mediation to settle discrimination charges filed against small businesses. Mediation can often save employers a good deal in attorney fees while resolving issues much more quickly than going to court.
Here are 12 FAQs to help you understand EEOC’s mediation process.
#1: Who mediates EEOC charges?
Only mediators with experience and training in mediation and employment laws are assigned to mediate EEOC charges. All EEOC mediators, whether internal staff or external mediators, are neutral, unbiased professionals with no stake in the outcome of a mediation process.
#2. How long does EEOC mediation take?
Most mediation sessions will take three to eight hours, depending on the case’s complexity, how well-prepared parties are, their attitudes toward one another, and other factors.
#3. At what point in the administrative process will mediation take place?
Mediation will usually take place early in the dispute process and before an investigation.This saves the Commission time and money while still helping both parties appropriately resolve the charges. It also prevents either side from hardening its position, which can occur happen during a lengthy investigation.
EEOC mediation is entirely voluntary for both parties. Courts can enforce signed mediation settlements.
#4. Can a party request mediation if EEOC does not offer it?
Yes. Either party can request mediation without an offer from EEOC. As long as both parties agree to participate, EEOC will consider the charge for mediation.
#5. Is the EEOC mediation process confidential?
Yes. The EEOC maintains strict confidentiality in all mediations.
The mediator and parties must sign agreements to keep everything revealed during the mediation confidential. The sessions are not tape-recorded or transcribed, and any notes taken by the mediator are destroyed. In addition, the mediation program is insulated from the EEOC’s investigative and litigation functions to further ensure confidentiality
#6. Who should attend a mediation session?
Both parties (the employee and the employer) should attend, as well as their respective attorneys.
#7. What happens to a charge if it is not resolved in mediation?
The charge is returned to an investigative unit and processed just like any other charge.
#8. Are parties required to pay a mediation fee?
No. There are no mediation fees. Each side does bear the cost of their own lawyer should they choose to consult or hire one.
#9. What happens if a party does not comply with a mediation agreement?
EEOC mediation outcomes can be enforced in court just like any other settlement agreement filed with the EEOC. If either party believes the other party is not complying with an EEOC mediation outcome, he or she should contact the ADR Coordinator. Personally, I have never seen a party fail to comply with the settlement terms of an EEOC mediation.
#10: The other party seems difficult to deal with– can mediation really help us reach a settlement?
I strongly believe so. Most mediations reach a settlement, including many where one or both parties regarded their opponent as “difficult.”
A major advantage of mediation is it puts an independent person (the mediator) in the middle to act as an intermediary. Mediators are excellent in helping both parties communicate more positively and effectively. They move the discussion away from negative emotions and toward a shared goal to resolving differences. There are no guarantees a settlement will happen, but it is far more likely a “difficult” party will settle with you during mediation.
#11. Are there any risks associated with mediation?
Honestly, there are few risks associated with an EEOC mediation and they are much smaller than the risks and more substantial attorney fees associated with prolonged litigation.
There are no binding legal decisions at mediation. There is no judge or legal authority and no one can be said to win or lose a mediation. It is a voluntary process–no one can force you to settle–and the issues discussed are confidential and cannot be used as evidence in court.
#12. I want to settle, but the other side doesn’t. Can I make them attend mediation?
No. Mediation is a voluntary and optional process, so the best you can do is ask.
If the other party says no, politely accept the refusal, and see if further opportunities to mediate or settle arise later on. I have found that even when disputes don’t settle during a mediation, the majority still settle at some later point. We actively encourage offers to negotiate a settlement a part of our law practice.
If your business is answering an EEOC question, contact our office for a consultation.