From a policy perspective the EEOC must consider whether they can, or should, seek to take further action to bring these cases into the mediation program. Mediation is often referred to as “facilitated negotiation”. Negotiation theory indicates that parties seek to negotiate where there is some mutual need that must be accommodated by negotiation. Absent such an interdependency of goals or objectives, the use of mediation is problematic.
It is clear from our research that the declining employers perceive that the EEOC charge is without merit and that mediation serves no purpose. Employers also indicate that since they believe that the program requires that they bring money to the table, this leaves little room to agree to mediate a charge that they perceive is meritless.
As presently designed, at the moment in time when mediation is offered, employers have investigated the charge and are not ready to negotiate based on their perception of the case. In general this lack of interest in mediating is not related to the EEOC or its mediation program. Thus, there is little that the present pre-investigation program, as structured, can do to increase the participation rate.
Should the EEOC wish to increase its mediation participation rate it can do so by changing the employer’s perception of the merits of the charge at issue. This may be done a few ways. First, employers believe that some of the charges offered for mediation should never have been selected for mediation as they are completely without merit. If this is the case, then more careful screening should result in a richer quality of charges and thus a higher mediation acceptance rate.
A second way to change the employer perception of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. If mediation was offered at a later point, after an EEOC investigation indicates that the charge may have merit but before a final investigative determination, it is expected that mediation would be more attractive to the employers. This is supported by our research results indicating that many employers are willing to mediate the charge later if necessary.
A third way to change employer perception relates to the choice that the employer has between resolution at mediation and an EEOC investigation. The EEOC may want to consider whether its investigatory arm’s percentage of probable cause findings, and the depth of the charge investigation, influences employers’ willingness to participate in mediation.
In addition to changing employers’ perceptions regarding the merits of the charge, another way to change employers’ perceptions about mediation is to make it clear to all parties that a nonmonetary resolution is possible. If employers are correct that these charges are without merit, and if mediation establishes these facts, then it is possible that the charging party’s perception would be altered and a nonmonetary resolution would occur. On the other hand, if the employer learned new facts then a monetary resolution may be appropriate. Thus, the perception that money is required to participate in the program may cause employers to decline and also block the resolution of some charges. However, it must be recognized that such a change may result in a lower resolution rate at mediation, as money may be a key demand that will not be compromised.
Another implication pertains to the marketing of the EEOC mediation program to the employers. A vast majority of employers who participate in the EEOC mediation program are satisfied with the process.20 While the main reason for the lack of employer participation is the perceived lack of merit of the charge, it is possible that a better marketing of the program could yield more employer participation. Given that the majority of the survey participants have a rather neutral perception about the EEOC and the mediation program, it is worth investigating whether there is anything the EEOC could do to better educate the employers about the benefits of the mediation program. The data about employer perceptions suggest that the EEOC mediation program does not enjoy a separate identity; rather it could be concluded that employers lump the EEOC and its different programs together. A marketing program designed to emphasize the benefits of mediation and the positive experience of previous participants of the EEOC mediation program could improve employer participation, especially among those with negative or neutral perception about the EEOC.
In sum, the failure of more employers to enter EEOC mediation in its current design as a pre-investigative program is primarily structural. Employers do not believe that they have incentive to mediate at the pre-investigation stage because at this time in the process they do not believe the charge has merit; they also believe that they have to pay money at mediation. These employers also do not have any concern that the EEOC investigation that will occur in lieu of resolution at mediation will be adverse to their interests. Thus, employers who decline to mediate do so after making a decision that at the time of the offer to mediate is well informed and in good faith.
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This page was last modified on December 2, 2003.
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