Mediation is a form of alternative dispute resolution (ADR) offered by the United States Equal Employment Opportunity Commission (EEOC) as an alternative to traditional investigation and litigation processes. It is an informal process in which a trained mediator helps the parties reach a negotiated resolution of an allegation of discrimination. The mediator does not decide who is right or wrong and has no authority to impose an agreement on the parties. Instead, the mediator assists the parties in exploring and reconciling their differences together.
Participation in the EEOC mediation program is strictly voluntary; if either party refuses to participate, the charge will be processed like any other charge. Only mediators with experience and training in mediation and equal employment opportunity laws are assigned to mediate EEOC positions. The EEOC has a team of trained mediators, as well as external professionals hired to mediate charges filed with the EEOC. All EEOC mediators, whether internal or external, are neutral and impartial professionals who have no interest in the outcome of the mediation process. In order to increase mediation opportunities, the EEOC expanded the charges for which mediation can be eligible for mediation. Mediation is now available in the conciliation phase, after a judgment of discrimination has been handed down, in appropriate cases.
Can a party request mediation if the EEOC doesn't offer it? Yes. The EEOC maintains strict confidentiality in its mediation program; the mediator and the parties must sign agreements to keep everything that is revealed during mediation confidential. Mediation sessions are not recorded or transcribed, and any notes taken by the mediator are destroyed. In addition, to ensure confidentiality, the mediation program is isolated from the EEOC's investigation and litigation functions; they are prohibited from performing any other function related to the investigation or litigation of the charges. While it is not necessary to have an attorney or other representative to participate in the EEOC mediation program, either party may choose to do so.
The mediator will decide what role the lawyer or representative will play during mediation; they may be asked to provide advice but not speak on behalf of one of the parties. The EEOC evaluates each charge to determine if it is appropriate for mediation, taking into account factors such as the nature of the case, the relationship between the parties, the size and complexity of the case, and the relief sought by the prosecuting party. Charges determined by the EEOC to be baseless are not eligible for mediation. What happens to a charge if it isn't resolved in mediation? If a charge is not resolved during the mediation process, it is returned to an investigation unit and processed like any other charge. Mediation has no cost; what happens if one of the parties does not comply with an agreement reached in mediation? Can information revealed during a mediation session be used during an investigation if the accusation is not resolved during the mediation session? No; because of its strict confidentiality, information revealed during a mediation session cannot be disclosed to anyone, not even other EEOC staff. Therefore, it cannot be used during any subsequent research. Are non-cash benefit charges settled? Yes; in almost half of cases mediated, agreements involve a non-monetary benefit.
Since its inception, approximately 13.5% of cases have only involved non-monetary benefits. As an employer, if you believe that an accusation is baseless, why should you participate in mediation? But did you know that mediation doesn't have to be used only for legal issues involving courts? In fact, a mediator can also be used to help facilitate difficult conversations that parties may not be able to hold on their own. If we think of a mediator as a facilitator of debate, then options for using mediation are broadly expanded. Mediation is available in most non-criminal matters; however, some non-violent criminal cases such as those related to verbal harassment are often resolved satisfactorily during mediation. Claims that don't involve legal problems are also good candidates for mediation; for example, disputes with neighbors over shrub invasion or outdoor light brightness don't merit lawsuits. In these types of situations, it may be wise to seek out mediation to end conflict. After receiving a request for mediation, The Center will contact parties (or their representatives) to begin discussions on appointing a mediator (unless parties have already decided who will be mediator).
All differences between mediation and arbitration stem from fact that in mediation parties retain responsibility and control over dispute and do not transfer decision-making power to mediator. The WIPO Arbitration and Mediation Center (The Center) will help them identify appropriate mediator for model they want adopt. When definition of practice of law in particular state would allow mediator discuss legal issues with parties even offering neutral perspective on strengths and weaknesses of case then parties and mediators would not comply with rules similar those adopted Virginia and North Carolina reasons described below. There are two main ways which mediators help parties make their own decision which correspond two types or models of mediation practiced around world. One main functions WIPO Arbitration and Mediation Center is help parties identify and agree on mediator. Service as neutral third party may include service as arbitrator mediator or any other capacity that allows lawyer help parties resolve their dispute. The Center...
