EEOC Mediation

LindaE · November 2004

A former ee has filed a discrimination complaint (racial) with the EEOC. We have been given the oportunity to go to mediation or skip the mediation and go to trial.
This is a first for us. We don't know which would be better but think the mediation would be best. We would like to see what others have experienced and would welcome any advice you can give. Thanks

Whatever · November 2004

This advice should come from the attorney (whether corporate or from the insurance company)based on all the information.

Down_the_Middle · November 2004

By all means take advantage of the mediation. The amount of discovery on the front end is generally less than if you proceed to trial. There's no obligation to accept the mediation result (altho you should approach this with intent to settle the dispute), so you'll have less time, less expense and less hassle. I frequently use the process as a "trial run" to review the evidence of both parties and to make assessments of our likelihood of succeeding in litigation. EEO looks favorably on employers who choose to try and settle the dispute, so give it a try........... Good luck

Parabeagle · November 2004

[font size="1" color="#FF0000"]LAST EDITED ON 11-24-04 AT 11:06AM (CST)[/font][br][br]I just completed an EEOC mediation two weeks ago. Having done it both ways (defending the charge and mediating) I prefer mediation. In our case, we could have defended against the groundless claim, but we spent so much defending the last one that we decided to try this. Worked well. Took two hours and cost much less than a couple of hours of lawyer time. And the charge went away. x:-)

KathiHR · November 2004

You definately should have your employment attorney involved in that decision. Mediation is always offered early on & skipping mediation doesn't automatically mean you're going to trial. I recently skipped mediation because I knew the charges were totally unfounded, were a form of harassment to us, & I had plenty of documentation to prove it. The claim went through the normal investigation, the EEOC found no evidence of discrimination, & issued her the right to sue letter. So far, so good, and her time to file is up Dec. 10.

And by the way, while our attorney normally likes mediation for the purpose of discovery, he advised us to skip this mediation because he had previously had an unethical experience with the mediator. Representing another employer against a claim of age discrimination, something came out in mediation about the administration of COBRA accounts. It was a comment in passing & had nothing to do with the case at hand. The mediator made more of it than it was & turned that information over to the DOL. The company then had to defend itself against an investigation by the DOL. The company prevailed, but had the expense of defending itself. Our attorney felt that to be extremely unethical on the part of the mediator. So, if you use an employment attorney whose been around, they know the mediators, they look at your case, & can advise you what to do.

ScorpioHR · November 2004

I went to mediation on an EEOC complaint a few months back. I discussed the complaint with my Board of Directors, and no, we did not consult our attorney. Past experience showed he would have went for the trial (how else would he make money?). I went prepared and won the mediation. I was sent a copy of the suit and went line by line with documentation to refute his claims. If you are more comfortable speaking with your attorney, by all means, do so. If you are comfortable and can back-up your companies position, go alone. Good luck!
scorpio

Don D · November 2004

Once an EEOC charge progresses past the point of initial position response, I would never recommend going it alone or HR deciding the course of action, unless someone in HR is an employment attorney. The EEOC is staffed by, guess what, attorneys. These people are experienced at what they do and their goal is never, ever to reach a resolution favorable to the employer. Six years ago the company I was with mediated, on advice of an incompetent attorney, and that resulted in a three-year stranglehold on our processes, advertising and recruiting through a multitude of reverse-discrimination or fictitious organizations and a lengthy magnifying glass over recruitment, advertising and hiring. When an agreement is made to mediate, the employer gives up his argument and lays itself at the mercy of the EEOC largely. It is commonly a bluff by a government agency staffed by zealot attorneys, with personal agendas, not unlike the NLRB, and they can easily position you over a barrell, buttocks up! Agreeing to mediation is not something the typical HR Director/Manager should walk into unacompanied by counsel. There's no glory in walking into this type of battle alone. Call your labor attorney.

ScorpioHR · November 2004

"There's no glory in walking into this type of battle alone. Call your labor attorney."

Well now, I usually agree with The Don's position, this time I just cannot. Mediation is so employer's DO NOT have to pay out huge attorney fee's. My experience with EEOC mediation was extremely positive and as I stated in my original post, if you are prepared and can refute the charges (backed up by documentation) there is no need for an attorney. I was not walking in alone looking "for glory", I was looking for a fair decision and I got it. Again, good luck whatever you decide and let us know how it turn's out.
scorpio

Whatever · November 2004

This is a first mediation. As a result, more than ever, an attorney is needed. On something this important, experience is needed. There is too much at stake, to risk doing something that you have no experience with.

We have an employment practices policy. Therefore, we had no choice but to use an attorney. In both cases, the attorney organized the documentation and wrote the cover letters. We won both cases. Obviously, there was no mediation.

Dasher · November 2004

I definitely would opt for the mediation because I truly believe in the process, BUT I would bring a labor attorney with me. Usually if things are at the point of filing a claim in the first place you want to have the protection of legal minds, if for no other reason than EEOC will have them.

And, a mediation is not to win/lose but to win/win.

Ethel · November 2004

My recommendation is also to talk with an attorney. Our experience has been that having them prepare the response has stopped the EEOC from going further and, while it does cost some money, it is not terribly expensive like a trial would be. Our documentation was not Super nor was it bad. However, when the attorney's letter finished presenting it in our response letter -- it looked TERRIFIC! It was worth the monies spent.

LindaE · November 2004

I'm pretty sure the boss will talk with our attorney (he posted this thread). I'm wondering if observers are allowed. I know the employee and this situation very well, and I really want to learn from this proceeding. Hopefully we won't hit this situation for a while, but I want to be prepared! What has your experience been with observers/participants?

Parabeagle · November 2004

EEOC will send you a confirmation notice of the date and time of the mediation and ask you the name and title of any parties who will be attending, as well as their connection with the case - anyone attending will also have to sign a confidentiality agreement.

As far as not having to face this for awhile, get ready now - EEOC states that most mediations occur within 30 to 60 days of the time the parties agree to mediate (we rec'd the charging party's complaint in mid-September and went to mediation in early November).

LindaE · November 2004

Sorry, I meant I hoped this wouldn't happen to us again anytime soon! Unless I heard wrong, there is a mediation date set for THIS FRIDAY! Maybe I'm paranoid, but I don't want to participate and run the risk of messing up. I'm generally not kept in many loops, unless the employee can't speak English, and then I'm up to speed. I would just like to sit back, observe and learn. Wish us luck!
Linda Emser

EEOC Mediation

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