In fiscal year 2024, the EEOC received 88,531 new charges and conducted 11,998 mediations, resulting in the resolution of 8,543 charges. These mediation success rates—reflecting a resolution of 9.6% of total charges filed and 71.2% of charges mediated—suggest that employers may want to consider participating in the EEOC’s free alternative dispute resolution (ADR) program in some cases. This week’s Employment Law Update presents a reminder about the EEOC’s ADR program with details regarding how it differs from private mediation conducted during litigation and thoughts regarding how even an “unsuccessful” early mediation may be beneficial for employers.
For eligible charges, the EEOC offers parties the opportunity to mediate soon after the filing of a charge and electing to mediate postpones the deadline for filing a position statement in response to the charge. Charges that the EEOC has determined to be without merit based on an initial review are not eligible for mediation but in most instances, charges that require additional investigation on the merits are eligible for mediation. If either party rejects mediation or if mediation is not successful, the charge proceeds to the EEOC’s investigation process. In addition to being voluntary, EEOC mediations are free, are conducted virtually, and often are conducted without the submission of formal mediation position statements, making them a cost-effective option for exploring early resolution. Importantly, EEOC mediators operate independently of the EEOC’s investigation personnel, so information shared with the EEOC mediators remains confidential and is not provided to EEOC investigators.
In contrast, private mediations conducted later during litigation most often require the use of a private mediator who must be paid by the parties and who often requests that the parties submit written mediation position statements prior to mediation, increasing the cost of mediation for all parties. Although later private mediation may be voluntary as well, many judges now require the parties to mediate at some point during employment litigation.
When deciding whether to participate in the EEOC’s mediation program, employers first, and most obviously, should consider whether they are willing to pay any amount to settle the charge. The option of early mediation presents an opportunity to discuss with counsel the relative value of pressing forward with a principled defense of the charge versus the value of possibly obtaining certainty and closure and avoiding the expense and disruption of an EEOC investigation and possible future litigation. Employers also may consider whether the charging party might be driven by a desire to be heard in addition to a desire for money. Sometimes, when a charging party has the opportunity to tell their story to a neutral third party, they become more willing to accept a reasonable settlement and move on. An EEOC mediator will listen and provide options for resolution rather than listening solely for the purpose of investigation, which may provide a measure of satisfaction to some charging parties.
Even an unsuccessful mediation may offer potential benefits. For example, the EEOC mediation process offers a free chance for employers to learn more about:
- The charging party’s claims and arguments;
- The focus of the charging party’s real grievances, or particularly emotional drivers in the case;
- Potential witnesses or other evidence for later discovery efforts;
- The mediator’s opinion on potential factual and legal defenses;
- Whether the charging party is represented by counsel;
- The charging party’s current bottom-line monetary demands and positions;
- Potential sources of noneconomic or disproportionate value for the charging party, such as:
- Reference letters,
- COBRA coverage payments, or
- Outplacement assistance.
Participating in early mediation may not be the right choice for every charge, but in light of the potential benefits and the minimal cost associated with the EEOC’s ADR program, it merits consideration whenever it is offered.
