A former employee files a charge with the Equal Employment Opportunity Commission (EEOC) against their prior employer alleging that they were unlawfully terminated as a result of discrimination. The parties may be advised that they have the ability to participate in the EEOC's mediation program. When your client asks if they should participate, what should you say? Here are five things to discuss with your client so that they can make an informed decision about whether or not to participate.

  • They should be advised that the process is completely voluntary. If they elect mediation, the mediation process pauses any investigation, production of documents and avoids costly expenses.

If either side should decline mediation, then the charge would be sent to the enforcement unit for investigation. What does that typically mean? It means that the employer would be asked to submit a position statement in response to the charge and, thereafter, may be asked for documentation. The investigator then sends the position statement and documents to the employee to review and respond. The investigator typically does not conduct interviews, but instead relies on the documents submitted by each side. If the employee does not request a right to sue letter after the EEOC has had at least 180 days to investigate, the investigation process typically lasts for 10 months to a year. However, your client should be warned that the process usually takes longer than a year.

  • They should be notified that the mediation process is free.

The EEOC assigns the mediation to either a mediator on staff or a pro bono mediator. This means that it will not cost your client any money to participate in the mediation. Compare this to what it may cost your client should the action continue to federal court where the parties will be mandated to participate in some form of alternative dispute resolution (ADR) and private mediators tend to charge between $3,500 to $6,000 for their services.

  • They should be made aware that the mediation is conducted via an electronic platform.

A link is sent to the parties, so your client can conveniently participate from the comfort of their own home or office. This is helpful, as mediations can take hours and it can give them the flexibility of tending to other needs during breaks. It also might make them more comfortable during the process, as they are not required to travel and are in a familiar place. Your client should be told that while the mediation process can be lengthy, it is not nearly as time consuming as the time it would take to prosecute or defend a lawsuit.

  • They should be counseled that the mediation process is confidential.

The mediator is tasked with acting as a neutral to determine whether the parties can amicably resolve the charge. The parties are required to sign a confidentiality agreement. Regardless of what occurs at the mediation, the mediator is not permitted to advise the investigator of what was discussed—only that the charge resolved or did not resolve. As such, the parties are able to speak freely and nothing said during the mediation can be used against them if the charge is not resolved. Further, the mediation process can shed light on your client's strengths and weaknesses and allow it to determine how best to proceed.

  • If your client chooses to participate in the mediation process, you should recommend that your client attend.

After all, this is their case and they should want to hear what the other side has to say in order to determine how to proceed. While the EEOC suggests that all parties attend the mediation session, sometimes employers will send counsel in their stead. Whereas if the matter proceeds to federal court, the parties are required to attend an ADR session. Again, it is more important for the parties to be present to learn what the other side is going to say if this matter were to continue.

Explaining the EEOC Mediation Settlement Agreement

If an agreement is reached, the EEOC will draft a mediation settlement agreement (MSA) that must be signed by both parties. This is a pre-determined, basic form that the mediator must complete. There is not much leeway, as the mediator is unable to make any real change to said form.