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To Mediate or not that is the question?

Posted By Cindy Hesch, Thursday, February 15, 2018
Updated: Monday, February 12, 2018

To Mediate or not that is the question?

By Scott Mara, SHRM-CP, PHR-CA

 

Almost every HR person has probably received an EEOC charge letter at some point in their career. If you have not you are truly lucky, or your charge is on the way. The charge letter is not something to take lightly. HR will need to investigate the charge and prepare a position statement. Some organizations have their legal counsel draft the position statement which can take a lot of time and be costly. There is another option that is available to you and that option is mediation. I’ve participated in several mediations and felt they were very successful. I know the lawyers out there are rolling their eyes and laughing. But seriously, mediation is not a bad option and can be cost effective.

EEOC started offering mediation in April 1999. According to the EEOC website, between 1999-2017 the EEOC completed over 212,000 mediations which has lead to 153,000 charges being successfully resolved. As of September 2017, EEOC had over 2,800 universal mediation agreements in place with various local, regional and national employers.

So, what in the heck is mediation? Well, mediation is a form of alternative dispute resolution or ADR. Mediation is an informal and a confidential way for the employee and employer to resolve their disputes with the help of a neutral third-party mediator. The mediator does not decide who is right or wrong and they don’t issue a decision either. Instead, the mediator helps guide the parties, hopefully to a mutually agreed upon resolution. It is important to note, when a charge is filed with the EEOC it can take a year or more for it to be resolved; however, with mediation a charge can usually be resolved in three months or less. I’ve used that line during one mediation with a former employee. I said we can get this done today or you can wait a year or so and you might not get the outcome you were hoping for. The look on his face was priceless and we settled the case on the spot.

Before you decide to mediate, you need to conduct your investigation into the charge to see if there is any merit to the allegation(s). You then need to prepare a position statement based on the investigation. This process serves three main purposes, first it allows you to determine the merit of the charge(s) second, it provides you material that you can use during mediation process and third, you will have your position statement done in case mediation is not successful.  

Mediation is held at a location determined by the EEOC usually their office; both parties arrive and will be placed in different rooms. The parties will then join the mediator in a joint session or sometimes the parties can stay in separate rooms and negotiate through the mediator. Either way the mediator will explain the process to both parties, go over the ground rules and allow both parties to provide their opening statement or their side of the story. During the process, the mediator will have the parties work on finding common ground towards a mutually agreeable solution. This process could take a few hours. Hopefully, at the end you will have an agreement and reach closure.

If you decide mediation is an option for you here are some tips I would like to sha

  • Come with an open mind, leave your ego at the door. The goal is to close this case and move on.
  • Do your homework before attending the mediation session, this is where the position statement and investigation comes into play. Know your facts, draft your opening statement ahead of time. Review the employee’s file and talk to the employee’s manager and witnesses to gather more information. This due diligence will help during the mediation.  
  • You can have an attorney draft a settlement agreement ahead of time and leave a blank for the financial aspect.
  • Make sure you know what your company is comfortable with in terms of a financial settlement. If you need to go above your authorized settlement amount, make sure to get your management’s approval.
  • Sometimes employees just want to be heard and know that we are taking their concerns seriously.
  • Understand you might not get everything you want in an agreement.
  • Don’t feel pressured to reach an agreement. If your investigation determined you have a strong case, it’s ok to walk away and submit a position statement and go that route. This is called leverage.
  • If you think the mediation might be tough, its ok to bring counsel with you especially if it’s your first time. I’ve done mediations solo and with counsel. The times I used counsel were on difficult mediations.

Mediation is a good option don’t be afraid to try it. Thanks for reading and continue to practice safe HR!

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