Schickman is a partner at Freeland Cooper & Foreman LLP in San Francisco. His remarks came at BLR’s Advanced Employment Issues Symposium in Las Vegas.
EEOC staffers have a lot of cases, and they want to get cases into their “resolved” file. Also, he adds, you often get some relief on document production and reporting when you choose the mediation route.
What happens during the mediation? Basically, the mediator’s job is to sow the seeds of doubt on both sides of the issue, says Schickman. Everyone goes into the mediation thinking that they are right, and the mediator has to break each side down enough that they can come to an agreement. The mediator is not a decision maker.
Can you get out of mediation without paying? Most often, you do have to bring your checkbook, Schickman says, but the amount you’ll pay is often less than you’d pay to go to trial, by a factor of 10. It’s not unusual for the payment to be “de minimus” say, $1500, he adds. A pittance compared to going to court.
And sometimes, you find out that all the person really wanted was a sincere apology or some reasonable change in job conditions.
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Here are some comments from EEOC about how mediation works and what its benefits are:
An EEOC representative will contact the employee and employer concerning their participation in the program. If both parties agree, a mediation session conducted by a trained and experienced mediator is scheduled. While it is not necessary to have an attorney or other representation in order to participate in EEOC‘s Mediation Program, either party may choose to do so. It is important that persons attending the mediation session have the authority to resolve the dispute. If mediation is unsuccessful, the charge is investigated like any other charge.
Advantages of EEOC Mediation
Free. Mediation is available at no cost to the parties.
Fair and neutral. Parties have an equal say in the process and decide settlement terms, not the mediator. There is no determination of guilt or innocence in the process.
Saves time and money. Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. Legal or other representation is optional but not required.
Confidential. All parties sign an agreement of confidentiality. Information disclosed during mediation will not be revealed to anyone, including other EEOC investigative or legal staff.
Avoids litigation. Lengthy litigation CAN be avoided. Mediation costs less than a lawsuit and avoids the uncertainty of judicial outcome.
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Fosters cooperation. Mediation fosters a problem solving approach to complaints and workplace disruptions are reduced. With litigation, even if the charge is dismissed by EEOC, the underlying problems may remain, affecting others in the workforce and human resources staff.
Improves communications. Mediation provides a neutral and confidential setting where both parties can openly discuss their views on the underlying dispute.
Helps you discover issues in your workplace. Parties share information, which can lead to a better understanding of issues affecting the workplace.
You design your own solution. A neutral third party assists the parties in the reaching a voluntary, mutually beneficial resolution. Mediation can resolve all issues important to the parties, not just the underlying legal dispute.
Everyone wins. An independent survey showed 96% of all respondents and 91% of all charging parties who used mediation would use it again if offered.
In tomorrow’s Advisor, what Penn State means for comp pros, plus an introduction to the all-in-one compensation website, compensation.BLR.com.
“And sometimes, you find out that all the person really wanted was a sincere apology or some reasonable change in job conditions.” So true–if more employers recognized this, there’d probably be fewer EEOC charges and lawsuits.