Tips on Mediation
EEOC describes their mediation process like this: Mediation is a fair and efficient process to help you resolve your employment disputes and reach an agreement. A neutral mediator assists you in reaching a voluntary, negotiated agreement. Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee.
When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency. So, you’ve gotten past the point where your employer can claim that your case is without merit. But, that won’t necessarily prevent them from claiming just that. Anyway, mediation is the first choice/desired action because it is less time consuming and avoids litigation.
A friend of mine recently went through mediation with a government agency. Those present at the mediation meeting included my friend, the government mediator, the Human Resources representative (representing her former employer), and the former employer’s attorney.
The reason I decided to share tips on mediation is because my friend felt strongly that the mediator was really pushing her to make decisions that weren’t necessarily in her best interest. For instance, when her former employer low-balled her with a financial settlement offer, the mediator made a big show out of telling her what a great offer was being made to her. Yet, the offer didn’t consider back pay or compensatory damages. My point isn’t to get into the specifics of her case, but to share some of our discussions about the mediation process. Here are some tips to keep in mind;
1) Remember that you aren’t required to reach an agreement at mediation. DON’T LET ANYONE PRESSURE YOU INTO AGREEING TO A RESOLUTION YOU TRULY DON’T ACCEPT OR THAT YOU THINK IS UNFAIR;
2) Don’t assume your employer’s representatives will tell the truth at the mediation meeting. INFORMATION SHARED AT MEDIATION IS DEEMED CONFIDENTIAL AND CAN’T BE USED AGAINST THE OPPOSING PARTY AT A LATER TIME. So, don’t be surprised if you hear new false allegations at a third-party mediation session. Your employer won’t be legally committed to these new fabricated allegations;
3) Remember that the mediator is not there to provide you with legal advice;
4) If possible, take a lawyer with you, since your employer may bring representation. You should also have a lawyer there to represent your best interests, as well as to provide clarification on the Federal statutes;
5) Don’t assume the mediator is fair and impartial—or even good at their job; (the same as Human Resources staff, who are often not fair and impartial and usually work to protect the employer!);
6) Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment;
7) Don’t assume the mediator is tilted in favor of the “little guy,” rather than the employer;
8) If you are engaging in third-party mediation with an agency, such as the EEOC (rather than so-called workplace mediation), and you don’t like the agreement being offered, simply decline to resolve the issue through mediation. Declining the offer will result in a full government investigation of your employer; and
9) To hell with your employer! You should consider the impact the abuse has had on you—personally and professionally. That includes consideration of compensatory/punitive damages related to loss of pay (termination, wrongful denial of promotions and raises, salary cuts/demotions, etc.), loss of work/sustained unemployment, any health issues caused by the stresses at work, damage to your professional reputation within your field (future employment issues), etc.
IF ANYONE HAS GONE THROUGH THE MEDIATION PROCESS, PLEASE SHARE YOUR THOUGHTS. POST A COMMENT!
If you want to know more about the government perspective on mediation, the EEOC has a link to facts about government mediation at: http://www.eeoc.gov/mediate/facts.html and a Q&A on government mediation at: http://www.eeoc.gov/mediate/mediation_qa.html
When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency. So, you’ve gotten past the point where your employer can claim that your case is without merit. But, that won’t necessarily prevent them from claiming just that. Anyway, mediation is the first choice/desired action because it is less time consuming and avoids litigation.
A friend of mine recently went through mediation with a government agency. Those present at the mediation meeting included my friend, the government mediator, the Human Resources representative (representing her former employer), and the former employer’s attorney.
The reason I decided to share tips on mediation is because my friend felt strongly that the mediator was really pushing her to make decisions that weren’t necessarily in her best interest. For instance, when her former employer low-balled her with a financial settlement offer, the mediator made a big show out of telling her what a great offer was being made to her. Yet, the offer didn’t consider back pay or compensatory damages. My point isn’t to get into the specifics of her case, but to share some of our discussions about the mediation process. Here are some tips to keep in mind;
1) Remember that you aren’t required to reach an agreement at mediation. DON’T LET ANYONE PRESSURE YOU INTO AGREEING TO A RESOLUTION YOU TRULY DON’T ACCEPT OR THAT YOU THINK IS UNFAIR;
2) Don’t assume your employer’s representatives will tell the truth at the mediation meeting. INFORMATION SHARED AT MEDIATION IS DEEMED CONFIDENTIAL AND CAN’T BE USED AGAINST THE OPPOSING PARTY AT A LATER TIME. So, don’t be surprised if you hear new false allegations at a third-party mediation session. Your employer won’t be legally committed to these new fabricated allegations;
3) Remember that the mediator is not there to provide you with legal advice;
4) If possible, take a lawyer with you, since your employer may bring representation. You should also have a lawyer there to represent your best interests, as well as to provide clarification on the Federal statutes;
5) Don’t assume the mediator is fair and impartial—or even good at their job; (the same as Human Resources staff, who are often not fair and impartial and usually work to protect the employer!);
6) Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment;
7) Don’t assume the mediator is tilted in favor of the “little guy,” rather than the employer;
8) If you are engaging in third-party mediation with an agency, such as the EEOC (rather than so-called workplace mediation), and you don’t like the agreement being offered, simply decline to resolve the issue through mediation. Declining the offer will result in a full government investigation of your employer; and
9) To hell with your employer! You should consider the impact the abuse has had on you—personally and professionally. That includes consideration of compensatory/punitive damages related to loss of pay (termination, wrongful denial of promotions and raises, salary cuts/demotions, etc.), loss of work/sustained unemployment, any health issues caused by the stresses at work, damage to your professional reputation within your field (future employment issues), etc.
IF ANYONE HAS GONE THROUGH THE MEDIATION PROCESS, PLEASE SHARE YOUR THOUGHTS. POST A COMMENT!
If you want to know more about the government perspective on mediation, the EEOC has a link to facts about government mediation at: http://www.eeoc.gov/mediate/facts.html and a Q&A on government mediation at: http://www.eeoc.gov/mediate/mediation_qa.html
Labels: filing complaints, liability/damages, punitive damages, tips and strategies
posted by S. Mary Wills at 11:38 AM
7 Comments:
Thank you for publishing this post and for providing such a great resource for workplace issues that concern race. I'm really glad I came across this site, particularly since a lot of my work involves workplace matters. And as a mediator, I'm really glad that you've invited discussion about a process that can help people talk issues through in a constructive and empowering way.
You gave some sound advice here -- reminding your readers that mediators can't provide legal advice and that they should consider bringing an attorney with them. An attorney can be absolutely invaluable to inform you of your rights and the law, and help you negotiate and reach a fair and reasonable settlement through mediation. And you also let your readers know that if they don't "like the agreement being offered, simply decline to resolve the issue through mediation". Mediation is voluntary and is designed to be free from coercion-- no one should ever accept any offer that they don't like. Thanks for these important reminders.
There are some concerns though you've raised that I'd respectfully like the opportunity to address.
First, it sounds as if your friend didn't have a positive experience of mediation, and I'm very sorry to hear that. I would encourage her to contact the EEOC immediately to provide feedback to them about the mediator and to let them know of her concerns about the mediator's ability to be impartial, giving specific examples why. They need to know.
Second, I saw some generalizations made in this post that depict mediators in a negative light. For example, you say, "Don’t assume the mediator is fair and impartial—or even good at their job", and "Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment." The vast majority of us work very hard to provide a fair, balanced process, and conduct ourselves impartially. It's our job to ask hard questions of both sides, to draw out the interests and concerns that all involved have, to help both sides communicate and understand each other better, and to be sure that people on both sides of the table think through the decisions they make. We take our responsibilities and our roles seriously. Most of us do good work and conduct ourselves in a professionally responsible way. The high satisfaction rate for mediation at the EEOC and in other settings bears that out.
You also say, "Don’t assume the mediator is tilted in favor of the "little guy," rather than the employer". That's halfway right -- I would say instead that the mediator should not be tilted in favor of anyone. A mediator tilted in favor of the "little guy" would be as ineffective as the mediator tilted in favor of the employer.
There's one remaining thing I'd like to clarify. Your post begins with the words, "When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency." Unfortunately, that's not the case, at least insofar as the EEOC goes. The fact that you've been offered mediation by the EEOC after you've filed your complaint has nothing to do with whether your case has merit or not. In fact, there is a strict firewall between the mediation office at the EEOC and the investigative unit. If mediation doesn't produce a settlement, or mediation is declined, then an investigation will take place, which will either result or not result in a finding of discrimination. But merit has nothing to do with the fact that mediation is offered. Mediation is offered prior to investigation because it can help address issues and resolve problems in a mutually satisfactory way at an early stage without the need for investigation or to go to trial later -- and not because the EEOC thinks a case has merit.
Thanks again so much! I'm really glad to be introduced to your blog. And thanks for listening.
Great Blog! It is extraordinarily helpful.
I am not black but your advice is very useful to anyone experiencing racism. What you describe - I have experienced.
In October I filed an EEOC complaint and currently I have been assigned a mediator who is trying to mediate. I'm finding that the administration, even after agreeing to mediation, seems to be stalling. The right people, the right date, the right information never seems to be available..... They are going to try and stretch out the process as long as possible to see if I give up. I believe they have until the end of January before the charge will automatically go into investigation. Then... when the charge goes into investigation... I'll have to wait some more....
My complaint is against a school district I worked for successfully for 8 years and my inability to get re-hired after having to quit due to the birth of my son 5 years ago. (My son was born premature and needed me round the clock.) The issue is one of retaliation for events that occurred in 1996. The one individual who harrassed me because I was a non-local and a woman has been promoted to associate superintendent.
Your advice to document is absolutely essential. Luckily for me, I documented events of 1996, filed a Civil Service complaint and it's is logged with the Civil Service Commission.
Good Morning,
A couiple of years ago I also agreed to mediation. Thinking my issues and concerns were apparent and correctable. My request were nominal and reasonable. I also requested the mediator would not have any association with my employer. The agency attempted to pull a fast one. I was informed during a break that the mediator was a former attorney for the agency that I had filed the complaint against. My recommendations, have the agency document the mediators work history and have themsign that they do not have any affiliation with your employer. Once the process/mediation began it was apparent that the mediator was bias.
What is an employer declines mediation? Is that good or bad?
Great article. I have to disagree with the EEOC mediator that said that the EEOC mediates claim in which they have found no merit. Your article is correct because on the current EEOC website it states:
Are all charges eligible for mediation?
No. The EEOC evaluates each charge to determine whether it is appropriate for mediation considering such factors as the nature of the case, the relationship of the parties, the size and complexity of the case, and the relief sought by the charging party. Charges that the EEOC has determined to be without merit are not eligible for mediation.
Good advice. Workplace mediation gives both sides opportunities to express their views - whereas without mediators it may be one sided - with the employer having the upper hand over the employee. This is something mediators like Cedar (who my company in York use) can help avoid.
I've been recemtly offered a mediation process with Eeoc ,I'm nervous because I believe the empyrean may have a relationship with the Eeoc ,I have worked for this co. for,over 20 years and feel I have alway been treated differently because of y race blk ,systemic and systematic racism is alive and well .i was such a strong worker and now ive i'have been brought down to crying and breakdowns on the,floor departments ,dignity gone .a typical management layering is a black or Latin supervisor ,a black manager and the white vp or other doing equally the dirty work but using people of color to beat workers of same race .this white guy or gal is allowed to bob in and out and has true protective status unlike the alleged protective status people of color has!!!!
Yuk
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