If you are bringing a charge of employment discrimination at the Equal Employment Opportunity Commission, you're likely to settle the dispute through mediation set up by the Commission. Here's how it works. (To learn more about discrimination claims, check out the Discrimination and Harassment topic area.
Mediation is a method of settling a dispute. In mediation, a neutral third party (the mediator) meets together with the parties, encourages them to communicate their concerns, and works with them to create an agreement that will end the conflict.
The Equal Employment Opportunity Commission (EEOC) created a mediation program in the early 1990’s that has since become one of the largest and most successful dispute resolution programs in the United States. EEOC mediation enables parties to settle a charge of discrimination without engaging in a lengthy investigation or going to court.
Thousands of charges are filed with the EEOC each year. Of these, the EEOC selects some as suitable for mediation. The EEOC Mediation Unit contacts the charging party and the respondent (the employer) to ask if they wish to engage in mediation. If both parties agree, the EEOC schedules a mutually convenient date for the mediation. If one of the parties declines to mediate, the charge is sent to the EEOC Investigation Unit.
There may be many good reasons to engage in EEOC mediation. The program is “free, quick, voluntary and confidential.” Participants do not sacrifice their rights by mediating: If the case does not settle, the charge is treated just like any other charge of discrimination filed with the EEOC. The mediator can help the parties create their own positive outcomes. A high percentage of EEOC mediations are successful, and participants frequently report their satisfaction with the EEOC’s mediation process.
At the start of the mediation session, a trained mediator explains the mediation process and then asks the employee to explain why he or she filed a charge and what he or she hopes to accomplish. The employer likewise shares its perspective of the dispute and its goals for the mediation session. The mediator will then try to help the participants overcome their differences and encourage them to work together to arrive at a mutually acceptable agreement that will resolve their dispute. If the mediation is successful, the settlement agreement will have the same force as a court’s judgment.
In mediation, the participants, rather than a judge or jury, decide the outcome of the matter. The mediator does not review the evidence to determine who will prevail, and the mediator has no authority to impose a resolution on the parties. Instead of one party winning and one party losing, in mediation the agreement is typically a compromise, and may even be a “win-win” solution that gives both parties some or all of what they want. Additionally, lawsuits are time-consuming and can be stressful. Mediation, which typically lasts a day, cuts short the amount of time needed to resolve a case, and participants frequently report how productive and even healing mediation can be. Whereas court processes focus on the past, mediation focuses on creating a positive future. Moreover, trials are public and may even be reported in the media, whereas mediation is private and confidential.
EEOC Conciliation occurs after an EEOC investigator has reviewed the evidence and found “reasonable cause” to believe the employer has engaged in illegal discrimination or harassment. During the conciliation process, the EEOC will explain why it concluded that the employer may have violated the law and will try to reach a settlement with the employer. The EEOC may also encourage the employee’s assistance in helping to settle the case. The employer is free to accept or reject the settlement offer. A successful conciliation may result in the employer agreeing to change its practices to conform to the law and to remedy harm caused to the employee. If conciliation is unsuccessful, the EEOC will either bring a lawsuit on behalf of the employee or issue the employee a “right to sue” letter, which permits the employee to file a civil lawsuit. To learn more about the right to sue letter, see our article, Right to Sue Letter from the EEOC.