Employment Disputes: Tips for the Employer on How to Prepare for an EEOC Mediation

Tip #1: Talk to your Human Resources, Employee Relations, and Equal Employment Opportunity Managers on a regular basis to find out where the hot spots are. Address those issues sooner rather than later. Find out if those employees have been able to vent their concerns in a meaningful manner. It is important the employee meets with the individual he or she is complaining about with a third party neutral present.

An attorney from a leading Bay Area law firm said, “Employment disputes do not suddenly surface out of nowhere, there are always warning signs.” Most employers tell me their employees’ concerns are “covered” by their Human Resources, Equal Employment Opportunity, and Employee Relations Managers.Many employees, when they seek assistance with employment disputes, unfortunately, do not feel taken care of by those managers. Consequently, some employees are not staying engaged, and are experiencing low morale, and considering seeking employment elsewhere. Some employers like the Equal Employment Opportunity Commission, Coca Cola, and Halliburton, have found an effective way to address employees’ needs by offering a contracted outside mediation option. Halliburton’s general counsel reports that his company no longer needs to budget for employment litigation since their ADR program has been so successful at addressing employee conflicts.

As a former EEOC mediator with a M.A. in Conflict Resolution, who has conducted over 500 workplace disputes, I believe mediators are trusted by more employees than those other managers. The reason for this may be that a mediator’s only agenda is to help the parties resolve their differences, as well as the fact that they are viewed by more employees as being impartial.

Some employers’ resistance to offering their employees an outside mediation option can be likened to the 1970s when many employers did not welcome Employee Assistance Programs (EAP). Most employers today would never eliminate EAP from the menu of options offered to employees. I believe at some future time, the same may be true of the contracted outside mediation option.

A typical employment dispute demonstrates the need for more than the usual menu of options, i.e. Human Resources, Equal Employment Opportunity, Employee Relations Managers, Union, and EAP. A woman in her late 50s, Joan, who had been working for a non-profit organization the past 18 years complained about her supervisor, and filed an EEO complaint with the Human Resources Manager. The manager took all the right legal actions, including meeting with the employee privately. One step this employer did not take was to offer the employee the opportunity to vent her concerns with Human Resources and her supervisor at the same time. Currently, the employee has managed to pull other employees into the fray, and has also filed an EEOC charge against the employer. Unfortunately, at this time a protracted EEOC process lies before them, which will last a minimum of nine months!

Tip #2: Make sure the third person neutral is skilled in conducting an interactive conversation between the parties involved.

Many times the internal manager is accustomed to individual coaching, but not skilled in facilitating a conversation between all the parties at the same time. The internal managers are not familiar with looking behind the party’s stated positions and helping the employees understand what lies underneath those positions. In order to have a meaningful resolution, the parties need assistance in discovering any repeated communication patterns that may be getting in the way of their working together effectively. In many situations, the best way to accomplish this task is by using a contracted outside mediator.

I have offered these thoughts and ideas in the hope that employers can consider adding this contracted outside mediation option to their company’s policies and procedures, as a way to avoid the EEOC process. However, if you do receive an EEOC charge from an employee, there are some ways you can negotiate the process with a minimum of damage.Tip #3: Bring people who have knowledge of the dispute and who have the ability to make decisions and changes.

When people attend a mediation that don’t have the power to implement changes, the employee will be frustrated, and rather than improve the situation, the conflict may grow worse as a result of the mediation.

Tip #4: Vent your anger and frustrations toward the employee before attending the mediation, so you can attend the mediation ready to “hear” the employees’ concerns without being too reactive. Don’t minimize your annoyance with having been charged with discriminating against this employee. Employers, who ignore their own frustrations, may end up taking it out on the employee in the future.

Tip #5: Be ready to offer the employee something meaningful. This doesn’t always mean a monetary offer, but make sure you are offering the employee something of value, and not just something that meets your needs. Discuss your interests and the interests of the employee prior to attending the mediation with another company official.

Tip #6: Look at your part in the dispute. Most conflicts are not one-sided. That doesn’t mean you have discriminated against the employee, but consider any behavior on the company’s part that may have contributed to the employee feeling disrespected or not heard.

Tip #7: Mediation isn’t a court proceeding. No one wins in mediation if someone feels blamed or shamed. Try not to approach the mediation from the vantage point of being the “boss”. Sometimes an employee, who is feeling powerless, can only feel a sense of power when they file a charge against their employer. Use the mediation to help the employee feel valued and heard.

Tip #8: Don’t write a vague settlement agreement or include unrealistic terms that can’t be implemented just to get a withdrawal of the EEOC charge. Make the agreement meaningful and be as creative as possible. For example, if this employee is complaining about not having enough management contact, suggest having meetings on a weekly basis for three months after the mediation.

Tip #9: Think of the bigger picture, not just the present. If the mediation involves a current employee, pay special attention to preparing both manager and employee for returning to the workplace subsequent to having filed a charge. Keep in mind that no matter how serious the original charge, just the fact that a charge has been filed, can now set the stage for a future retaliation charge.

Tip #10: Remember you’re the employer and you have to live with the work environment that you have created. Don’t let your lawyer do all the talking because they don’t work with your employees on a daily basis.

Bonus Tip: It’s easy to dismiss an employee as intractable, but most people if they are truly listened to and respected, will rise to the occasion. In some situations, however, it may be best to part ways with the employee. Don’t be afraid to have the mediator explore a separation package, when and if the time is right to do so.