By John V. Berry, Esq., www.berrylegal.com
This is an article regarding the Equal Employment Opportunity (EEO) mediation process for federal employees. Our law firm represents federal employees in discrimination, harassment, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and in individual federal agency EEO offices. Many retaliation, discrimination or sexual harassment cases that are filed through the EEO process go through mediation, but each has slightly different processes and procedures depending on the federal agency involved. This article discusses the EEO mediation process and the potential benefits associated with engaging in that process for both parties involved.
What is the EEO Mediation Process?
Mediation is a voluntary procedure in which both parties attempt to avoid litigation and attempt to informally resolve a complaint through ac meeting. Once an EEO / EEOC complaint / charge or other appeal has been filed, the parties are generally allowed the ability to start out in mediation first. If mediation is agreed upon by both parties, then a mediator is assigned to mediate the dispute. The EEOC provides a nice general summary of the mediation process which varies slightly between federal agencies.
The mediator assigned to the EEO dispute does not make a finding as to who is right or wrong with regards to the dispute and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by from the federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.
Who Attends the EEO Mediation Session?
Usually, once the mediation session is scheduled, both parties and their lawyers will attend, along with the mediator. The mediator can be someone employed by the agency or a third-party contractor. The background of a mediator varies significantly. Many of the Department of Defense agencies have their own mediators. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible. Furthermore, once an agreement is reached you will need counsel to prepare a written agreement that is fair for the federal employee.
How Does the EEO Mediation Process Work?
The EEO mediation process is a form of alternative dispute resolution (ADR). Usually, the mediation parties will meet at a location located somewhere within federal premises, and it will usually held in a conference room. The session will usually last a day, but can last longer if needed. Once the mediation session begins, a mediation proceeding can vary (based on the personality of the mediator and of the parties) but the process usually will proceed as follows:
1. The mediator will provide a copy of the mediation agreement, if not previously completed. The parties will sign the agreement to mediate. The mediation agreement will almost always ensure that any discussions at mediation, stay at mediation and are held confidential (they can’t be used later in litigation if settlement does not work). Sometimes, the parties are required to turn over their notes for destruction.
2. The mediator will begin by explaining the process of mediation to the parties and invite any questions before the session begins. The mediator may also provide helpful information about how she or he likes to run such proceedings. Mediators, depending on their experience, how many different ways of conducting a mediation.
3. Next, the parties will each provide an opening statement about their position in the case; often it is helpful for the complainant’s side to explain how they feel that they suffered discrimination, sexual harassment, or retaliation. Following the first opening statement, the other side will provide their view of the claim and how they feel about the complaint that was filed.
4. The parties will then usually discuss the EEO complaint, the merits of the complaint and any employer defenses. The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.
5. The parties may then discuss resolution or the parties may be separated by the mediator in separate meetings (normally called caucuses). A mediator may go back and forth between the parties discussing proposals and responses from each side to the other side.
6. The most important part of the mediation process, from our experience are the caucus sessions. That is where most agreements are found.
7. The mediator will then, to varying degrees, attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want. Sometimes this occurs, and sometimes this does not.
8. If a settlement terms are agreed to, the next step will be to reduce the agreement to writing and have all parties execute the agreement.
Formal Written Settlement Agreement
Following the verbal agreement between the parties agreed to at mediation, a written settlement agreement is prepared and entered into the record. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys. The agreement will bind both parties to a resolution and the agreed to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO complaint will be then withdrawn as part of the agreement in most cases.
According to EEOC statistics, the settlement rate at mediation was approximately 72-75%. A binding written agreement reached during the EEO mediation process or through a federal agency’s EEO office can be enforceable in court if a party does not live up to their side of the settlement. In sum, we consider it a victory if both parties can resolve a case and save the time and costs of further litigation through dispute resolution efforts.
If Mediation Doesn’t Result in Settlement
If mediation does not resolve an EEO complaint by a federal employee, then the parties will revert to the investigative process, where both the federal agency and complainant will retain their rights to have the matter investigated. The investigator will be assigned and begin the EEO investigation for the federal employee. In such a case documents will continue to be reviewed and discovered and relevant witnesses will be interviewed. Following the investigation a Report of Investigation (ROI) will be prepared by the investigator which will provide details of the investigation but not issue any findings.
For federal employees, they will then have the initial option of proceeding to an administrative hearing before the Equal Employment Opportunity Commission (EEOC) (this is generally recommended) or one can request a final agency decision (FAD), which is an internal decision by the federal agency on the claim of discrimination. The court process, if needed, can then follow.
In conclusion it is a generally a good idea to attempt to mediate an EEO complaint prior to litigating a claim as many cases are often resolved. However, if this is not the case, then each party may resume the formal investigation and litigation process.
If you are a federal employee in need of assistance with filing an EEO complaint, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on our Facebook page.