The use of mediation to resolve EEO disputes is growing exponentially and nowhere more rapidly than the Federal Sector. The EEOC has the largest mediation program in the world and the USPS runs a close second. (For statistics on EEOC and USPS programs visit http://www.mediate.com/articles/eeoc.cfm.)
Mediation, in its most simple form, is the intervention of a third party (the mediator) into a dispute with the aim of helping the disputants reach an agreement and so end the dispute.
This article provides an overview of the mediation process, in particular EEO mediations. We also share a checklist of items to think about that will prepare you for your mediation session – along with some tips that will improve your effectiveness as an advocate for your agency during the actual mediation process.
Understanding the Mediation Environment
In the past, EEO disputes were routinely investigated. While this option still remains, charging employees and agencies are now given a choice between mediation and investigation. If investigation is chosen, parties must submit evidence and wait for the investigation to be conducted. An EEOC investigation can take up to 2 years.
Mediation has become the process of choice to resolve EEO disputes because it is both faster and more cost effective than traditional EEO complaint resolution mechanisms. In addition, mediation allows the parties in dispute to make their own decisions. Furthermore, it often allows communication problems and misunderstandings to be clarified while maintaining ongoing relationships.
Mediation comes in different forms. For example, the USPS mediation program uses a transformative mediation model. This requires the mediator to play a passive role and essentially follow the disputants. The goal is not merely to solve the immediate problems necessary to settle this particular EEO dispute (although most do get resolved), but rather focus on opportunities for empowerment and recognition. (For those interested in exploring this model more fully we suggest you read the seminal book on transformative mediation, The Promise of Mediation, Bush & Folger, Jossey-Bass, 1994.)
The US Navy and the EEOC use a facilitative mediation model. This is probably the most common mediation model in use. With this approach, the mediator takes a more active role in managing the process, but is careful to leave the substantive decisions to the disputants.
Each EEO program varies, but the norm is for an EEO officer to make contact with the parties once the complaint has been filed to ascertain the parties’ willingness to mediate. Given that most people know so little about the mediation process, it is important that the EEO officer educates the various parties and addresses any concerns or misconceptions they may have. If mediation is chosen, a date is selected and a mediator is appointed.
Since most government programs have a designated person (either the ADR Program, EEO, or HRO Manager) select the mediator from a roster (either internal or external contract mediators), the parties are not involved in the selection of the mediator. That said, program administrators are sensitive to the needs of the disputants and requests are often respected. For example, a women alleging sexual harassment may feel more comfortable with a female mediator.
The Mediation Process
Most mediations start with an opening statement by the mediator during which the process and ground rules are reviewed. After the parties review and sign the confidentiality agreement, there is an opportunity to clarify roles, secure agreement on communication norms, and get everyone on the same process page. Since parties are often in these disputes because of poor communication and trust issues, the importance of this stage is the tone it sets.
Remember that in mediation it is the other party that you are most interested in engaging. Many parties confuse a mediator for a judge and they will direct their words and arguments towards the mediator. In fact, even seasoned HR and EEO representatives and attorneys sometimes will mistakenly say they are “appearing before a mediator.” To be most effective, you should direct all your energies at convincing the other side – especially since they are the ones who you need to sign off on any settlement agreement reached. Moreover, you want them to implement and comply with the agreement so they do not become ‘frequent filers.’
After the mediator’s opening statement, each side is given an opportunity to make a short opening statement. Normally, the charging party goes first while in joint session (a term of art, meaning the parties meet face to face in the same room with the mediator). However, it can take place in caucus (a meeting held in private with the mediator). What you reveal to the mediator in caucus is typically confidential and not conveyed to the other side without your express consent. If in doubt about this or any other aspect of the process, seek clarification from the mediator – you don’t want any surprises because a mediator is using a different set of rules.
Mediators vary in approach and style. Some prefer to keep the parties in joint session as long as possible while others use the caucus early on. The caucus is a useful tool at the disposal of the disputants and the mediator, especially when a monetary settlement is contemplated. It enables venting to take place, sensitive information to be shared, and the parties to formulate their “pitch” before delivering it to the other side. If the message is delivered in a respectful and well-ordered manner, it will increase the likelihood that it will be fully considered.
Once the parties have told their stories and educated one another on their perspective and needs, the stage is set to generate options. Mediation is seldom as simple as “splitting the difference.” More often it is about finding a solution that is going to work for both sides – a unique and creative solution that neither party contemplated at the outset. A skilled mediator helps the parties to fully explore each option by tracking ideas and helping craft an agreement.
A common method for generating options is brainstorming. Most of us are familiar with the concept. Unfortunately, it is a skill that is under utilized. Furthermore, the times when it is used it may be incorrectly utilized by focusing on the first options that come to mind.
Many charges of discrimination are resolved without the payment of money. Non-monetary options that have been generated include:
Also, consider brining in additional experts to help reach the best results at mediation. A Department of the Navy mediation expert in DC suggests “the use of subject matter experts is critical in many mediations in order to provide the participants with correct information about policies that may have brought them to the table. This guidance ensures that the hard work of the participants at the mediation is bringing about a settlement that is durable and within the law.” (Mary Ryan, US Department of the Navy)
It is normal for the complaint to be withdrawn if an agreement has been reached. The agreement should always be produced in writing and signed by the parties.
A mediation session typically takes between four and six hours. In some cases, a second session is necessary to complete the mediation. For example, when the parties are close to a resolution, but still need to work out some details – or they need a break to review the tentative solution, possibly with legal counsel. It may even be that new information was discovered during the mediation that needs to be checked out.
EEO Mediation Preparation
1. Prepare: Parties involved in mediation do better when they are prepared. In essence, mediation is a form of facilitated negotiation. The more time you take to do your homework the better. Review the file: is everything in order?
2. Timing: As a general rule, the earlier you engage in mediation the better. An opportunity to mediate shortly after a (charge of discrimination) complaint has been filed is ideal. Positions have not hardened and the conflict has not escalated – drawing in others and undermining morale and productivity. Be sensible in your desire to get the information you need to assess your case. Formal discovery is not normally necessary.
3. Participation: Give careful thought to the question of who needs to be there. A lot of the time, an EEO (charge) complaint is filed to draw attention to a frustrating situation. By bringing an attorney to the mediation, the danger is that a simple miscommunication problem is blown out of proportion. However, the involvement of attorneys can be crucial and at times necessary. They can help you assess your legal case and give you a reality check on what will happen if the matter does not settle. If the presence of a person will help reach closure, be sure to bring them along. If you don’t have settlement authority, make sure you have easy access to the person that does. Think carefully about bringing someone who may be overly defensive. Managers and supervisors often do their agency a disservice because they don’t want to admit their mistakes. You may have to coach your negotiation team a little to maximize your message and keep them focused on moving forward – and the mediator can help by encouraging openness.
4. Consider Experts: This is related to the question of participation. As Mary Ryan has suggested, it sometimes make sense to invite a subject matter expert to attend the mediation with the sole goal of providing information on a technical or complicated area. Examples that come to mind include benefits and ADA issues. An expert should serve the process, not the parties.
5. Appropriate Facilities: As the US Air Force Mediation Compendium suggests, “special attention should be paid to the following: (1) availability of a caucus room; (2) access to telephones; and (3) access to a computer and printer to assist in the drafting of a settlement agreement. The person making the arrangements must also consider the special needs of the parties, such as disability access.” Even if this is not part of your job description, making sure that these items are looked after will better enable all involved to reach a resolution.
6. Deal with Your Emotions Before the Mediation: Emotion is often the fuel that ignites a conflict. Make sure that you have dealt with your own feelings before you get to the mediation. Know what your hot buttons are and decide how you will manage them in advance. Try to anticipate what will make the charging party react defensively. Consider how you will deal with their hot buttons.
7. The Facts and the Law: Take the time to interview everyone involved. Get a good sense of what happened. Know the legal theory for your defense. Know the facts that are going to expose you and those that will protect you. Even if you do not bring legal counsel to the actual mediation, make sure that you have obtained their advice. Ask them to level with you. Ask them to tell you what your best-case scenario looks like, your worst case, and finally your most likely case.
8. Identify Your Key Interests (as well as theirs): Mediation works best when the parties reveal what really matters to them. This is easier said than done. When we feel we have been unjustly attacked, the temptation to build strong walls is great. Resist the temptation to be overly positional. Use this list to help you identify your and their interests:
9. Brainstorm Possible Solutions: Take the time to think of possible solutions. Be creative. Remember that a good solution is one that takes care of your needs as well as theirs. Remain flexible. More often than not, the best solution is not the one you devised, but something that both parties had a stake in creating. Remember, if the complainant is a “frequent filer,” then compliance is likely an issue (either with them or their supervisor). If the disputants own the resolution, and feel it will be honored, they will abide by it. If not, you have a clear conscience and a deal that was not honored.
10. Consider Cultural Differences and Similarities: The workplace is becoming more, not less, diverse: in terms of age (there are more older workers), gender (there are more women), race (there are more people of color), language (there are more languages spoken), and nationality (there are more immigrants). Different cultures approach conflict differently. Be sensitive to different ways of communicating and problem solving. Start by examining your own conflict culture and that of the complainant party. Try to understand the dispute from their perspective.
Tip to Maximize Your Effectiveness in Mediation
This advice applies whether or not you are accompanied by an attorney. As much as you may feel the complaint to be unjust or unfounded, remember that mediation is not an adversarial process. It is an opportunity to take the boxing gloves off and problem solve. If you don’t settle, you will have ample opportunity to fight.
1. Establish Rapport: Your primary goal with the complainant party should be to establish rapport so that you are both trusted and seen as credible. As has been pointed out, the other side is also a fact-finder and decision-maker. If you alienate them, you can forget about settlement. However, if the other side senses you are negotiating in good faith, most people would do the same in return.
2. Listen: The best way to persuade another person is by listening well. We all have been taught how to listen actively, yet it is one of the hardest skills to master – especially when we perceive the other to be dishonest or greedy. As long as you are listening and demonstrating that you understand what the other is saying, you are more likely to reach your goal: settlement.
3. Don’t React to Everything Said: Like listening, this is often easier said than done. However, when we react we loose control. Our emotions take over to the detriment of our reasoning and problem solving skills. Anticipate any hot buttons before you get to the mediation. When the charging party reacts, help by acknowledging their emotion. Empathize and agree where you can. EEO charges are very personal for the charging party. As an agency representative, you need to keep sight on the big picture and not take things personally. Anger is a common emotion encountered during mediation. Dealing with our emotions does not mean we should avoid anger. Rather, we should decide how best to deal with it. Sometimes it is inappropriate to reveal it. For example, if our anger stems from something unrelated (that early morning commute) or if a display will undermine the negotiations.
4. Communicate Clearly: Don’t say “Yes, but…” unless you want to escalate the conflict. Making a “You” statement is another no no. Try “yes” and “I” statements. Be careful about sounding insincere. Remember you want the charging party to feel comfortable with you. At the same time you need to communicate your own perspective.
5. Acknowledge Good Points Made by the Other Side: You want parties to get off the purely emotional track and onto the logic track. To achieve this, if you see some merit in a point the other side has made, acknowledge it. People will often not stop repeating a point until they hear you say words like “that sounds like it upset you.” You are not agreeing, but merely indicating that you understand what they are saying.
6. Be Conscious of Your Negotiation Strategy: Mediation is generally considered to be a collaborative process. That does not mean that participants in the mediation collaborate. It takes two to tango, two to collaborate. When you accommodate, let the other side know that you have. When you encounter a competitive approach, decide consciously whether you are going to respond in kind. The caucus is often a useful way of dealing with a competitive approach in mediation.
7. Don’t Forget What Your Needs Are: In some cases, you can only take certain measures if you have assurances from the complainant that they will implement some change or measures as well. Think creatively and remember you want this to work for the employee and management.
8. Ask Questions: Rather than assuming you know everything, ask questions to uncover misunderstandings. Open-ended questions are generally less threatening, but close-ended questions will often eliminate confusion on a particular aspect of the dispute.
9. Support Conciliatory Gestures: If the charging party shows his or her vulnerability during the mediation, don’t respond with an attack. “I can see my part in this problem” is a good example. It represents a shift from seeing the conflict as a result of someone else. Don’t respond by saying, “It’s about time” or something to that effect. Conciliatory gestures are like nuggets of gold. Make sure you acknowledge the gesture and reward it.
10. Focus on the Future, Not the Past: The reality is that you are trying to create a future arrangement. It makes sense to focus on the future you would like to create and not the past that has caused the problems. The past needs to be honored, mainly so that lessons for the future can be learnt.
Mediation is here to stay. It is likely that its use will increase because of the measurable benefits: better morale and productivity, as well as overall savings in time and money. Although most will experience mediation as a participant rather than as a mediator, it is important for parties to possess good advocay and negotiation skills for mediation. Properly briefed and trained, participants will ensure that your agency makes deals that are in everyone’s best interest.
Texas Conflict Coach Audio Blog by Pattie PorterForgiveness is a powerful tool for clients who are up against difficult, and seemingly insurmountable, conflicts. It creates a pathway from conflict to...By Patricia Porter
After generously commenting on my own comments to his article on the Privitization of Justice (any chance I can get permission to publish it here Professor?), Harvard Law School Professor Peter Murray...By Victoria Pynchon
A large number of middle class litigants find the cost of legal representation prohibitive. Clients have resorted to self-representation out of economic necessity. Many litigants opt for partial self-representation because...By Elizabeth Moreno