An EEOC mediation is an excellent opportunity to resolve your workplace discrimination claim at a very early stage. Knowing how the mediation process works and what to expect will help you avoid making critical errors which could ruin your chance to settle.
What is an EEOC Mediation?
Mediation is a formal settlement conference at which both sides to a legal dispute meet in front of a third party, a mediator, to try to resolve their disagreement. It is not a trial — there is no judge, no need for witnesses or formal evidence, and neither side needs to settle if he doesn’t want to. The mediator is a neutral party who does not take sides or decide a winner or loser. The mediator’s sole purpose is to try to ease communication between the parties in an attempt to reach a settlement.
The EEOC provides mediation services free of charge, which is great, as private mediators usually charge $300.00 or more per hour. However, you should not take mediation lightly just because it’s free.
EEOC Mediation — Should You Bring a Lawyer?
I strongly recommend that you try to hire an employment discrimination lawyer before your EEOC mediation. While you technically don’t need one, if you attend on your own you will be at a severe disadvantage. Your employer will certainly have a lawyer present, and without your own it will be very difficult to distinguish between valid legal points he makes and complete bullshit. Also, as the goal of the EEOC mediator is to settle the case, he is more likely to pressure you, due to your lack of experience, than he is your employer if you don’t have a lawyer.
Another strong reason to have a lawyer at your EEOC mediation is to show the other side that you’re prepared to litigate if the matter does not settle. Without this threat, you have very little bargaining power. Don’t put off hiring a lawyer just to try to save some money — it’s more likely to result in a failed mediation, after which you’ll have to hire a lawyer anyway. Also, you’ll probably find it much easier to find a lawyer with a mediation pending.
EEOC Mediation Process — What to Expect
Most good mediators begin the mediation with all the parties together in the same room. After giving a brief statement about how the mediation is confidential and how the purpose of the mediation is to explore risk factors and try to settle the case, the mediator will usually turn the floor over to the plaintiff to give an opening statement. If you have a lawyer, he will make this statement, which is essentially a summary of your case (why you expect to win) followed by your initial settlement demand. After your opening statement, the employer’s attorney will make his opening statement, telling you why you will lose your case.
These opening statements are not meant to be a debate. Each side says its peace without interruption before being separated into different rooms to begin private discussions and sending offers back and forth through the mediator.
If your mediator is one who typically doesn’t conduct a joint opening session, I suggest that you insist on one. I’ve found that mediations without a joint session are far less productive than those with one (especially if you have a lawyer).
If you made your opening settlement offer in the joint session, the employer will typically respond after it meets with the mediator in private. The mediator then shuttles back and forth between the two private rooms, bringing counter-offers (and any additional arguments each side wishes to share) until the matter either settles or reaches an impasse, at which point the mediation ends.
Opening Settlement Offers at EEOC Mediations
Inexperienced claimants often wrongly assume that they should make their bottom line “take it or leave it” offer right off the bat, and walk away if the employer doesn’t accept. This is a sure way to ruin your chances to settle. Mediations are most effective when they involve an exchange of several offers and counter-offers, giving each side a chance to feel the other side out and alter their negotiation strategies accordingly.
Your opening offer should be higher than your bottom line settlement figure — high enough to give you room to negotiate down several times, while still staying within the bounds of reason (and any damages caps). In workplace discrimination cases, emotional distress (and in egregious cases, punitive) damages provide the best area for “padding”.
Expect the employer’s opening offer to be insultingly low. This is normal, and should not cause you to think that the EEOC mediation is a waste of time. Don’t get upset and walk out after the first offer. Stick it out and keep negotiating — there is no harm in trying to find out what the employer’s “best offer” is before deciding whether to walk away. Often, these opening offers are far less than what the employer is really willing to pay — so be patient.
EEOC Mediation — Standard Negotiating Tactics
After exchanging initial settlement offers, your goal in negotiating is to get the mid-point of the settlement offers above your bottom line settlement value. You want the employer’s offers to come up more than your offers are coming down. This is why you need padding in your initial offer. You need to be able to keep going lower in your offers, while moving the mid-point of the offers (add your last offer to the employer’s and divide by 2 to find the mid point) up. The mid point sends a message to the other side about how much each side wants to settle the case for, so you want your initial moves to be fairly small to see if the employer will move more than you. Remember, there is no point in trying to increase your settlement offers — once you go down, there’s no going back up, so take it slowly at first.
What Information Should Be Exchanged at an EEOC Mediation?
Some employers may attend an EEOC mediation with no intention of settling. They may just want to get as much free information about your case as possible. While nothing that is said during the mediation can be used in court, each side can certainly follow up with witnesses or other evidence identified during the mediation.
If you are bringing a disparate treatment claim, be prepared to identify a “similarly situated employee” from outside your protected class who was treated differently from you. This is something you will need to disclose early on in litigation, anyway, so there isn’t much harm in disclosing it now. The names of co-workers who will support your claim are another matter, however. You probably don’t want to disclose these, as the employer may be able to coerce them into changing their testimony before they are committed to sworn statements. You can disclose the fact that there are co-workers who will support your claims — I just wouldn’t recommend naming names at this juncture.
Don’t Rely on the EEOC Mediator to Help You
I have heard that some EEOC mediators have advised claimants not to hire a lawyer prior to mediation. This is terrible advice. The EEOC mediator isn’t there to hold your hand during the process or help you state your case. His job is just to try to settle the claim. It may be easier for him to do so if you don’t have a lawyer, but that does not work to your benefit. You will be the one sacrificing to make the settlement happen — not your employer.