EEOC Update: Mediation is quick, cost-effective form of dispute resolution

Lynn Bruner is the director of EEOC's St. Louis District, which covers Kansas, Missouri, and part of southern Illinois.

More than 80,000 complaints of employment discrimination are filed with the Equal Employment Opportunity Commission each year. Until recently, most complaints led to a lengthy investigation by EEOC officials. Now, EEOC is offering employers and their employees the opportunity to mediate many of these complaints. Mediation is a quick and cost-effective way of resolving claims of employment discrimination, and a lot of employers are catching onto that fact.

Mediation sessions are held before any investigation occurs, and if resolved at that stage, shorten processing time and limit the employer's liability. In addition, the type of mediation used doesn't affix blame on either party and doesn't require that the remedy match some hypothetical model. The parties are free to fashion a remedy that works for them, which often leads to more workable solutions.

EEOC's mediation policy stipulates that the agency will use a facilitative style of mediation based on the core principles of fairness, voluntariness, neutrality, confidentiality and enforceability. These principles guide all mediation sessions in the St. Louis District, and throughout the nation.

Employers in the St. Louis jurisdiction have responded very favorably to the opportunity for mediation, raising the district's acceptance rate for mediation to 53 percent of those employers invited to mediate. This is the highest acceptance rate in the nation. During fiscal year 2003, the district mediated 970 cases, with 71 percent resulting in successful settlements.

EEOC wants its mediation program to be the best in the nation and is committed to studying its successes and failures in pursuit of continuous improvement. In 2000, the agency funded a study conducted by experts from Hood College, Salisbury State University and the University of Baltimore. The study reflects the responses provided by employers and employees who were involved in EEOC mediations from March 1 to July 31, 2000. There were 1,683 completed surveys from employees and 1,572 completed surveys from employers. Because of the sample size, this survey is one of the most comprehensive studies of mediation programs ever conducted.

The study demonstrated that the vast majority of employers and employees were satisfied with the process and trusted the fairness of the mediators. EEOC hopes this information will help to dispel any trepidation employers and attorneys may have about using mediation as a means of resolving employment disputes. A report on the study is available on EEOC's Web site at www.eeoc.gov (Quick Start Employers - Mediation).

A second study, "The EEOC Mediator's Perspective on the Parties, Process, and Outcomes," was completed by the same experts in August 2001. This study focused on how employees and employers behaved during mediation sessions, and identified the kind of behavior that helped resolve the dispute.

It also explored the reasons some disputes are not resolved, the effects of mediator tactics, behaviors that act as a barrier to a resolution, the role of lawyers, the role of nonlawyer representatives, and what events create the "turning point" in successful mediations.

The report is also available on EEOC's Web site.

EEOC is now experimenting with a new program for referring discrimination complaints back to employers who have an internal mediation program meeting certain standards of quality and confidentiality. Several national employers have agreed to use this approach on a trial basis. EEOC hopes to expand this approach to other employers, if it is successful.

The St. Louis District encourages employers and attorneys for both parties to seriously consider mediation as a quick and cost-effective way to resolve complaints of employment discrimination. The facilitative model used in the district is less confrontational than investigation or litigation. It can help the parties to better understand the reasons underlying their dispute, and in so doing, improve workplace productivity.

The district also encourages employers in its jurisdiction to enter into a "Universal Agreement to Mediate." These agreements do not bind employers or EEOC to mediate in every case, but companies do agree to consider mediation in every case.

This approach is particularly effective for national employers with subdivisions or satellite offices in the area.

By using this approach, national management can ensure that local disputes are being approached in the most effective way, with the best chance for quick, cost-effective resolution.

For further information on EEOC's mediation program, please contact St. Louis District Director via e-mail at lynn.bruner@eeoc.gov.