How does the EEOC's National Mediation Program work?

The EEOC's National Mediation Program was launched in 1999. Participation is strictly voluntary. If either party declines to participate in mediation, an EEOC charge will be processed just like any other charge.

The program has been an overwhelming success. As of the Spring of 2003, the EEOC had conducted more than 44,000 mediations, resolving over 29,000 charges and obtaining over $400 million in benefits for aggrieved individuals, all within an average processing time of 86 days. According to a study released in 2000, 96 percent of employers and 91 percent of employees who participated in the program indicated that they would be willing to participate in the EEOC's mediation program again. By late 2003 the EEOC's mediation program had grown to one of the largest employment-related mediation programs of its kind nationwide, with over 11,500 mediations conducted annually.

Who are the mediators? Only mediators who are experienced and trained in mediation and equal employment opportunity law are assigned to mediate EEOC charges. The EEOC has a staff of trained mediators and also contracts with professional external mediators. In the Spring of 2003, the EEOC launched a pilot program with nine state and local Fair Employment Practices Agencies to mediate private sector charge filings with the EEOC on a contract basis.

The EEOC also has a referral back mediation pilot, under which employers with internal dispute resolution programs that meet specific criteria may be able to get private sector discrimination charges referred back to a participating employer's internal dispute resolution program (see ¶76,110 ).

At what point in the administrative process will mediation take place? Mediation will usually take place early in the process prior to an investigation of the charge. Offering mediation to the parties prior to an investigation saves Commission resources by avoiding the investigation of a charge that might be appropriately resolved through mediation. In addition, mediation prior to an investigation prevents the hardening of positions that can occur during a lengthy investigation.

Is the mediation process confidential? Yes. The EEOC maintains strict confidentiality in its mediation program. The mediator and the parties must sign agreements that they will keep everything that is revealed during the mediation confidential. The mediation sessions are not tape-recorded or transcribed. Notes taken during the mediation are destroyed. Any records or other documents offered by either party during the mediation are also destroyed. Furthermore, in order to ensure confidentiality, the mediation program is insulated from the EEOC's investigative and litigation functions. EEOC mediators only mediate charges. They are precluded from performing any other functions related to the investigation or litigation of charges.

Where will mediation sessions take place? External mediators will arrange a mutually convenient time and place for the mediation after consultation with both parties. Mediations conducted by EEOC staff will usually take place at the EEOC's offices in space reserved for mediation.

Who should attend a mediation session? The charging party and a representative of the employer should attend the mediation session. The person representing the employer should be familiar with the facts of the charge and have the authority to settle the charge on behalf of the employer.

Can the parties bring an attorney or other representative to the mediation session? Yes. While it is not necessary to have an attorney or other representative in order to participate in EEOC's mediation program, either party may choose to do so. The mediator will decide what role the attorney or representative will play during the mediation. The mediator may ask that they provide advice and counsel, but not speak for a party. If a party plans to bring an attorney or other representative to the mediation session, he or she can discuss this with the mediator prior to the mediation session.

How long does the mediation process take? Mediation is a very efficient process that saves time and money. The majority of mediations are completed in one session, which usually lasts from one to five hours. Successful mediations avoid a time consuming investigation and achieve a prompt resolution of the charge.

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.

What happens to a charge if it is not resolved in mediation? If a charge is not resolved during the mediation process, the charge is returned to an investigative unit, and is processed just like any other charge.

Can information revealed during a mediation session be used during an investigation if the charge is not resolved during mediation session? No. Since the entire mediation process is strictly confidential, information revealed during the mediation session cannot be disclosed to anyone, including other EEOC personnel. Therefore, it cannot be used during any subsequent investigation.

Are the parties required to pay for the mediation? No. There is no fee for the mediation.

What happens if a party does not comply with an agreement reached in mediation? An agreement reached during mediation is enforceable in court just like any other settlement agreement resolving a charge of discrimination filed with the EEOC. If either party believes that the other party has failed to comply with a mediated settlement agreement, he or she should contact the ADR Coordinator.

Are employers reluctant to mediate? Yes. According to a study presented to the EEOC in December 2003 by Professor E. Patrick McDermott of the Perdue School of Business at Salisbury State University, many employers are reluctant to use the EEOC's mediation program. While about 80 percent of employees are open to mediation, only 31 percent of employers agree to mediation.

It is the employer's perceived quality of the charge that dictates whether the employer goes to mediation, not the perceived quality of the mediation program. The most significant factor in an employer's decision to decline the offer to mediate is the employer's perception that the merits of the case do not warrant mediation or they do not believe that the EEOC is likely to issue a reasonable cause finding. Instead, employers prefer to wait for the EEOC to investigate charges. Complicating the EEOC's efforts to encourage mediation, half of employers McDermott surveyed said they were reluctant to mediate because they believed that the EEOC mediation program would result in a monetary settlement. Other findings:

• Almost half of employers who declined the offer of mediation have prior experience mediating in the program.

• The vast majority of employers who declined the offer of mediation conducted their own internal investigation of the charges prior to declining to participate in the mediation program

The study is available in its entirety on the EEOC's website, http://www.eeoc.gov .

How can I learn more about EEOC's mediation program? For additional information about the mediation program at EEOC, you may contact EEOC's web page at http://www.eeoc.gov or the EEOC field office nearest you by calling toll free numbers 1-800-669-4000 (Voice) or 1-800-669-6820 (TTY).

The EEOC also has a free 14-minute video on compact disc entitled 10 Reasons to Mediate. For a free copy, contact Jennifer Kaplan of the EEOC at (202) 663-7084 or Jennifer.Kaplan@eeoc.gov or Laura Hinton of the EEOC at (202) 663-4811 or Laura.Hinton@eeoc.gov. The video is open captioned.

See ¶61,505 regarding information on making the mediation process accessible to individuals with disabilities.