Our investigation into the reasons for the lack of employer participation in the EEOC mediation program yielded interesting and consistent results. The conclusions of our research are the following:
The main, and overwhelming factor in an employer’s decision to decline the offer of mediation was that the “merits of the case did not warrant mediation.”
The second major factor, that the EEOC was not likely to issue a “reasonable cause” finding, also relates to the perceived merits of the case.
Other than the merits of the case and the low likelihood of a “reasonable cause” determination, the next important factor cited by employers who declined mediation is their perception that the EEOC mediation program requires monetary settlement. The perception of employers is that if they do not bring money to the mediation table they are not welcome.
The employers in this survey and their representatives who declined the offer of mediation are well informed regarding the EEOC processes and the EEOC mediation program. Almost half have prior experience mediating in the program.
The vast majority of the employers (91.7%) conducted their own internal investigation of the charges prior to declining to participate in the mediation program. They used a wide variety of methods to do their internal investigation of the charges. These actions include document reviews (87.2%), consultations with other management employees (86.5%) and non-management employees (51.3%), conversations with charging parties’ supervisors (79.2%), reviews with company attorneys (49.0%), statement collections from involved parties (39.0%), legal research (37.1%), and conversations with charging parties (25.3%).
The vast majority of the representatives (81.2%) were familiar with the EEOC mediation program prior to deciding to decline to participate in the program. Of those who were unfamiliar with the program, only a little over a third (35%) decided to investigate the program prior to deciding not to participate. Those representatives who were unfamiliar with the program and yet decided not to investigate it stated that their decision not to investigate the program was based on the specifics of the charges.
Most employers who participated in the EEOC mediation program in the past but rejected mediation in this study did not indicate that the rejection was due to their unproductive experience with the program. It is not the program that is a disincentive to mediate but rather the perceived quality of the EEOC charge at issue.
The participants have a neutral impression about the EEOC in general. Their impressions about the EEOC mediation program, though slightly more positive than about the overall EEOC, are neutral as well.
The feedback from the external attorneys and consultants showed that their decision about whether to mediate did not depend upon the client’s financial capacity or the charging party’s legal representation status. There was some moderate agreement that in some cases they would consider private mediation even though they won’t consider the EEOC mediation.
In the vast majority of the cases (82.2%), the EEOC could not have done anything differently for respondents to mediate the charge. This confirms the earlier finding that it is the merits of the case (or perceived lack of) that drives the decision not to participate in the EEOC mediation program. One thing that the EEOC may want to consider if whether or not employers are provided enough time to accept or reject mediation in the convening process. Also, for some parts of the country the distance that one must travel to mediate is an obstacle.
In the solicited general comments from the employers about the EEOC the primary concern was that the EEOC needed to do a better job of screening cases to ensure that meritless claims are dismissed. Thus, the “theme” of case/charge merit seems to remain throughout employer responses.
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This page was last modified on December 2, 2003.
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