Mediation

Scope

The decision to mediate is completely voluntary for the charging party and the employer. Generally, neither party to a dispute is required to participate in mediation, or to agree to a resolution; an agreement to mediate is an agreement to work in good faith with the other party toward a solution.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

Mediation gives parties the opportunity to discuss the issues raised in the charge, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into resolutions.

Role of the mediator. A mediator does not resolve the charge or impose a decision on the parties. Instead, the mediator helps the parties to agree on a mutually acceptable resolution. The mediation process is strictly confidential. Information disclosed during mediation will not be revealed to anyone, including other EEOC employees.

Key questions. Here are some key questions for parties to consider in preparing to participate in mediation:

• What are the main issues of concern to you? What are the main issues of concern to the other party?
• What are your goals for the mediation? What are the goals of the other party?
• Who are the key players in the dispute?
• What obstacles might there be to having a productive session?
• What will happen if the dispute is not resolved through mediation?
• Is there anything you need to help you participate in the process?

How mediation works. An EEOC representative will contact the employee and employer concerning their participation in the program. If both parties agree, a mediation session conducted by a trained and experienced mediator is scheduled. While it is not necessary to have an attorney in order to participate in EEOC’s Mediation Program, either party may choose to do so. It is important that persons attending the mediation session have the authority to resolve the dispute. If mediation is unsuccessful, the charge is investigated like any other charge.

Mediation typically includes an opening session, followed by a joint meeting of the parties, fully and fairly allowing both the employer and the employee to explain their point of view and to listen to the other party’s point of view. Through private and joint meetings with the mediator, the parties attempt to develop and evaluate options for reaching agreement. When an agreement is reached, usually it is memorialized in an enforceable, written document signed by both parties.

Advantages of mediation.

• Mediation is available at no cost to the parties.
• Parties have an equal say in the process and decide settlement terms, not the mediator. There is no determination of guilt or innocence in the process.
• Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. Legal or other representation is optional but not required.
• All parties sign a confidentiality agreement. Information disclosed during mediation will not be revealed to anyone, including other EEOC investigative or legal staff.
• Lengthy litigation can be avoided. Mediation costs less than a lawsuit and avoids the uncertainty of judicial outcome.
• Mediation fosters a problem-solving approach to complaints and workplace disruptions are reduced. With investigation, even if the charge is dismissed by EEOC, the underlying problems may remain, affecting others in the workforce and human resources staff.
• Mediation provides a neutral and confidential setting where both parties can openly discuss their views on the underlying dispute. Enhanced communication can lead to mutually satisfactory resolutions.
• Parties share information, which can lead to a better understanding of issues affecting the workplace.
• A neutral third party assists the parties in reaching a voluntary, mutually beneficial resolution. Mediation can resolve all issues important to the parties, not just the underlying legal dispute.