Although mediation takes some hits in other areas of the country, the New England region attorneys at a recent meeting of the Employers’ Counsel Network, reported good experiences with the process. EEOC Mediator Elizabeth Marcus offered her eight myths of mediation at the meeting.
The Employers’ Counsel Network includes the attorneys from each state who write BLR’s state employment law newsletters. Marcus is one of the EEOC mediators based in the Boston office of the EEOC.
Mediation vs. Enforcement
Marcus explains the essential differences between the mediation and enforcement roles of her agency:
- Find out what happened.
- Determine if it is a violation of a law enforced by the EEOC.
- Facilitate a conversation about what happened.
- Figure out how to resolve the problem.
Enforcement looks back at past events, says Marcus, while mediation looks forward. Mediation does not assign liability; it creates a productive plan for moving forward.
Advantages of Mediation
Marcus offers the following advantages of mediation:
- Puts a name and face to the employer. (Especially in bigger companies, employees don’t know the executives.)
- Lets the employee feel valued and respected. “I got my day in court. They listened to me.”
- Employers may gain a different perspective on their workplace.
- Avoids the proverbial making mountains out of molehills that often happens with litigation as things escalate.
- Avoids a time-consuming and/or distracting investigation.
- Brings closure.
Money Is Often Not What’s Needed
Employers may think that money is the only way to settle, but Marcus has seen many situations in which nonmonetary gestures have settled a case. For example:
- Changing a termination into a resignation.
- Taking a warning out of a personnel file.
- Authorizing a training course.
- $50 certificate for a kayak trip. (The person who settled for this had started with a demand for $100,000.)
- Written apology from the CEO.
Employee will share something that will change how I see the case.
Reality: 99 percent of the time, nothing shared by the employee changes your view. Usually, what they say solidifies your preexisting view.
Solution: Do not agree to mediation on this basis alone. Agree to mediate based on the facts as you know them.
Note, says Marcus, that the reverse of this myth is not true—employees may learn something that changes their view. For example, in one case, an 18-year employee entered mediation at an early state before she had seen a position statement, to mediate her complaint that she had been fired ahead of others who should have been fired instead. The company representative explained that the decision had been made on the basis of seniority and that the employee had the lowest seniority. “Oh, of course,” the employee said and accepted the situation without further discussion.
The mediator can call a pro se complaining employee and quickly find out what he or she wants, saving time and money for all.
Reality: Phone exchanges are very time-consuming for all.
Solution: Independently decide if mediation works for you. If so, say yes, and save your time, money, and effort for a live meeting.
As the employer’s attorney, I can just call the pro se employee myself and sort this out fast.
Reality: This has all the problems of the mediator calling, plus the attorney is not neutral.
Solution: Talk to the EEOC mediator before reaching out to a pro se complaining employee.
Keep meddling spouses and others out of mediation.
Reality: There is a value in having the decision maker in the room, so if the decision maker is the spouse, it may be a good idea to have him or her in the room.
Solution: Use the EEOC attendee rule—anyone agreed to may attend. View this issue on a case-by-case basis. Defer to mediator judgment.
Once the complaining employee hears the employer’s attorney outline the legal claim, he or she will realize how bad the case is.
Reality: The employee hears fighting words, and becomes defensive and/or shuts down. In one case, the employer’s defense was aggressive, the dollar demand went way up, and the mediation took much longer than it otherwise might have.
Solution: Gauge the employee’s body language and demeanor in the opening to decide how to respond. “Zealous advocacy does not typically work here,” says Marcus.
The complaining party makes the demand, and the responding party considers it and responds.
Reality: Employers are an equal participant in the process. Your interests and ideas matter.
Solution: Be proactive. Identify terms that you would like as part of a resolution. Your counterproposal may be a blend of your ideas and the employee’s.
If the employee provides a crazy demand, I can ask the mediator to get a better number.
Reality: No one will bid against himself or herself.
Solution: Keep the ball rolling, provide a counter offer, and allow the mediator to troubleshoot with the employee.
We have an agreement in principal, and the details can follow.
Reality: Unlike attorneys or mediators, this matter is the complaining employee’s (and likely the respondent’s) only case. A delayed follow-up can unravel the settlement.
Solution: Wrap-up is a top priority. Keep on top of forms, releases, etc.
Just coming to an agreement in principle isn’t enough in mediation. Laying out the details is important. How will the complaining party be paid? What is the time frame for training? When will she get that canoe trip gift card, and how long is it valid?