Will We See Increased Use of Mediation in Employment Cases?
I thought that this article (titled “EEOC using mediation”) was quite interesting although it deviates a little from what we have been talking about it class lately. The article says:
“Companies facing charges of employment discrimination often panic when faced with the possibility of spending thousands of dollars in legal fees to defend themselves.
But that doesn't have to be the case.
The U.S. Equal Employment Opportunity Commission — the agency responsible for enforcing federal anti-discrimination laws — is encouraging employers to consider mediation as an alternative to the traditional method of investigating charges of employment discrimination.”
The article goes on to say that:
“EEOC officials say it can resolve complaints in half the time using mediation and at a lower cost to the employer and employee.
‘A lot of companies don't want to spend the time and money to go through the mediation process because they would rather pay an attorney the billable hours to defend them in a lawsuit,’ said Cherry-Marie D. Rojas, coordinator for the EEOC's alternative dispute resolution division in Los Angeles. ‘But the great thing about our program is that it is free, and it works.’
Of the companies that have gone through mediation, 96% would agree to it again, Rojas said.
The agency's Los Angeles district office, which oversees Fresno, would like to see more companies sign an agreement obligating them to mediate employment discrimination complaints when they arise.
Nearly 50 companies, including McDonalds, Roadway Express and Con Agra Foods, have signed the EEOC's National Universal Agreements to Mediate.
‘I think there was a fear from companies that signing these agreements might lead to more charges,’ said Santos Albarran, an EEOC spokesman. ‘But that has really been unfounded.’”
I would certainly be a little weary of using mediation too much if I was an employer getting sued. I would be worried about the above quote, that basically says that if mediation is so much quicker and easier employees might try to bring more charges up because they know they could be awarded money by going through a much simpler process. The article says this thought is unfounded but I think that is just natural instinct. I guess it comes down to a cost-benefit situation for the employer. If they would greatly benefit from the decreased costs of using mediation (probably because they don’t have many employees), then they should use it. However, I feel that bigger companies could start getting more claims filed against them if they use mediation.
“Companies facing charges of employment discrimination often panic when faced with the possibility of spending thousands of dollars in legal fees to defend themselves.
But that doesn't have to be the case.
The U.S. Equal Employment Opportunity Commission — the agency responsible for enforcing federal anti-discrimination laws — is encouraging employers to consider mediation as an alternative to the traditional method of investigating charges of employment discrimination.”
The article goes on to say that:
“EEOC officials say it can resolve complaints in half the time using mediation and at a lower cost to the employer and employee.
‘A lot of companies don't want to spend the time and money to go through the mediation process because they would rather pay an attorney the billable hours to defend them in a lawsuit,’ said Cherry-Marie D. Rojas, coordinator for the EEOC's alternative dispute resolution division in Los Angeles. ‘But the great thing about our program is that it is free, and it works.’
Of the companies that have gone through mediation, 96% would agree to it again, Rojas said.
The agency's Los Angeles district office, which oversees Fresno, would like to see more companies sign an agreement obligating them to mediate employment discrimination complaints when they arise.
Nearly 50 companies, including McDonalds, Roadway Express and Con Agra Foods, have signed the EEOC's National Universal Agreements to Mediate.
‘I think there was a fear from companies that signing these agreements might lead to more charges,’ said Santos Albarran, an EEOC spokesman. ‘But that has really been unfounded.’”
I would certainly be a little weary of using mediation too much if I was an employer getting sued. I would be worried about the above quote, that basically says that if mediation is so much quicker and easier employees might try to bring more charges up because they know they could be awarded money by going through a much simpler process. The article says this thought is unfounded but I think that is just natural instinct. I guess it comes down to a cost-benefit situation for the employer. If they would greatly benefit from the decreased costs of using mediation (probably because they don’t have many employees), then they should use it. However, I feel that bigger companies could start getting more claims filed against them if they use mediation.
posted by John Kluka at
7:14 PM
1 Comments:
The interesting thing about mediation is that, if there are more charges as a result of mediation (I actually disagree with John on this point and agree with the article -- both as a matter of instinct and as an empirical matter), the employer has no obligation to agree to anything in the mediation. If the employer is sure that employees are bringing bogus charges to "take advantage" of the mediation, the employer can simply refuse to settle, offer nothing, and send the message that mediation is not a lottery ticket. In a mediation, no one is forced to agree to anything. One or both parties can walk away.
I have other concerns about the mediation program at the EEOC, especially the NUAMs, but the one John raises isn't among them. I am concerned because the EEOC (rightly) sets up a "firewall" between the mediation and enforcement operations. Mediators are not allowed to disclose information in the mediation to others in the commission. Of course, in one respect this is a good and necessary thing, because it's important to have free and uninhibited discussion in the mediation. If the parties to the mediation thought that any statements that they made could come back to haunt them later in an investigation or in litigation, they would be hesitant to share information with the mediator, which would inhibit the mediator's effectiveness. On the other hand, when the NUAMs send nearly all charges for a particular employre to mediation, it potentially robs the EEOC of the ability to pick up on evidence of widespread or systematic discriminatory practices. Furthermore, there can be evidence of other, related claims that come out during the mediation that the EEOC will not be able to investigate or act upon. The enforcement and legal arms of the EEOC don't get to see and evaluate recurring themes or additional evidence, because the mediations are confidential.
When I was at the EEOC, I witnessed several things that made me suspicious that these problems weren't just hypothetical. For instance, in one case there was a fairly simple and straightforward age discrimination charge that, after a small amount of investigation upon which I provided input, both parties decided to mediate. The mediation was successful and the parties agreed to a settlement to the tune of several hundred thousand dollars. I have no idea what came out during the mediation and neither did anyone else in the legal or enforcement divisions, because of the "firewall." However, we were all quite suspicious, because none of us ever dreamed that the charge claim was worth anywhere near the amount for which it was settled. So, either the employer got steamrolled (doubtful -- this was a large and sophisticated employer) or some information came out during the mediation that the employer wanted to keep quiet. (The mediation agreement or a side agreement between the employer and claimant, I assume (I, of course, was not entitled to see the agrements), included a confidentiality clause. So not only could the EEOC not talk about it, neither would the parties.)
Perhaps the gains of low cost and voluntary compliance that come along with mediation outweigh this potential drawback. I'm just not sold.
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