Meeting of the U.S. Equal Employment Opportunity Commission
EEOC Mediation Program and the Workplace Benefits of Mediation
December 2, 2003
I would like to thank the Commission for inviting me to participate as a speaker in today's proceedings to address the benefits of mediation in the workplace from an employer’s perspective.
I come this morning as a member of the Office of the General Counsel for The Johns Hopkins Health System Corporation which represents a group of healthcare employers that utilize or support the mediation program, some of whom have signed the Universal Agreement to Mediate drafted by the Commission. My clients are primarily The Johns Hopkins Health System Corporation, Johns Hopkins Hospital, Johns Hopkins Bayview Medical Center, Inc., Johns Hopkins Community Physicians, Johns Hopkins Home Care Group, Johns Hopkins Health Care and Howard County General Hospital.
I am also a member of an informal focus group which was formed between the American Bar Association and the EEOC, whose mission and activities will be discussed later in these proceedings by Commissioner Silverman and Maurice Wexler, Esq.
I should probably give you a little information about my background so that you can get an appreciation for how far I personally have come from the way in which I managed complaints of discrimination, and where I and my clients are now in this journey.
Prior to joining the General Counsel’s office, I was in the litigation section of the Baltimore City Solicitor’s Office for about ten years. My chief responsibility was to “vigorously defend the City in all employment litigation matters” (from my job description). We litigated every case and rarely settled anything. If I tried to work anything out, it was only at the urging of the court in settlement conferences. Prior to that, rarely did I ever contemplate discussing resolution. That just wasn’t feasible in most cases because management and most human resources offices were not interested in settling, settlement was viewed as a defeat or an admission, and not supportive of personnel decisions that were made by management.
I must also add that there really wasn’t a mechanism within the agencies that I regularly dealt with to consider voluntary resolution unless we were talking about conciliation after a finding. Of course, the employer was not in a great position to “negotiate” at that point.
When I was hired by the Office of the General Counsel for the Health System in 1994, my immediate responsibility was to get a handle on the pending EEO charges, and to once again “vigorously defend” my clients. I had more resources available to me, and was able to hire outside counsel, expert witnesses, and utilize other supportive resources to defend my clients. I can say that in most cases we prevailed, and in a few matters, we may have settled just before trial. Although we prevailed in many cases, litigation took its toll on our resources, both financial and human. Litigation often took on a life of its own, lasting sometimes for years. During that time, memories waned, staff moved on, employee/employer relations soured, and attorney’s fees escalated. In the end, it did not seem to be an effective way to continue doing business.
There had to be a better way. An investigator that I had known for several years (and who is present today, I might add), approached me on a few cases and expressed that perhaps there might be a way to resolve some of our charges. That may have been sometime in 1996. Although at first I was resistant, I listened. She talked to the Charging Party in one of my cases, I talked to my clients, and after a short period of time, we all agreed on a resolution that was acceptable to all parties. The beauty of the resolution was that it involved a current employee who was still in the workforce and who had to continue to have a relationship with management after the charge was filed. In the course of resolving the charge, we were able to reestablish a workable relationship that would have likely continued to deteriorate and of course, from our perspective, create additional exposure for the organization. It was a “win-win” situation.
As time passed, more and more of our cases were resolved through this informal mediation process. I believe that the Health System signed its first Universal Agreement to Mediate in 1999. We did so because we saw tangible benefits from our earlier participation. In our experience, we found that:
I think that it is important to note that our experience in the Baltimore District Office has been exceptional, and that but for the professionalism of the staff there, I am not so sure that we would have embraced the program so readily.
Hopkins is striving to be an “Employer of Choice.” We think that participating in the EEOC’s Mediation Program moves us that much closer to that goal. Employers of Choice do not stay in court with their current or former employees. We work at resolution at every stage, from the time that an employee approaches his or her immediate supervisor or HR with a concern, to attempting resolution through the EEOC’s Mediation Program. This does not means that Hopkins is a “push over”. You can ask anyone in the plaintiffs’ bar who has been across the table from us in mediation, or a mediator who handled one of our cases. When we mediate, we are tough, and we are frugal, but we are fair and we negotiate in good faith. If a case is not appropriate for mediation, we don’t mediate. If we cannot come to a resolution at the end of one session, we rarely continue the process. Notwithstanding this, we resolve at least 75% of our charges annually through the mediation process.
As a result of our commitment to the Mediation Program and the efforts of management and human resources within each organization, we have seen a dramatic drop in pending Title VII charges throughout the Health System. Without giving exact numbers, out of approximately 15,000 employees employed by various employers within the Health System, there are a handful of pending charges. In my opinion, that’s great.
It is not without a great deal of work on my clients’ part that these results have been achieved. Managers are trained by each Human Resources office to quickly respond to allegations of discrimination, and of course, each employer has a comprehensive anti-discrimination policy which all employees are made aware of on the first day of employment during orientation. The HR professionals responsible for implementing the policy conscientiously follow-up with an investigation when a complaint is filed internally, and they do a great job at resolving issues before they become an external matter. If a situation can’t be worked out, HR fully embraces the EEOC’s mediation program, and I believe that sends a great message to our employees.
Finally, I would like to pass on a few lessons that my clients and I have learned along the way as a participants in the mediation program.
We learned that the parties must be prepared to mediate a case. You can’t just go into mediation without having done your homework. I always meet with management and HR to go over the facts of the case, all files, and any reports that may have been prepared. We discuss possible ways to resolve the case. We get authorization from the appropriate executives and apprise them of the situation so that the process is not hampered by waiting to get authority for what we think would be a fair settlement.
We learned that settlement is not always about money. Sometimes there are noneconomic ways to settle a case that may be important to a Charging Party and to my clients.
We learned to be open-minded and flexible. I can’t tell you how many times I walked into mediation thinking to myself that there is no way this case is going to settle, too much water under the bridge. Of course, I never tell my clients that because I don’t want to upset them or scare them away, but I do think about that often. Fortunately, most of the time I am dead wrong, and we do come to a satisfactory resolution.
We learned the importance of coming to the table in good faith, and that means coming with a meaningful, well thought out proposal. We learned the importance of respecting our employees at the table, and that although we may disagree with their position, and may even believe that their claim is frivolous, it is important for us to keep an open mind and keep our thoughts on resolution. We have also learned that not every dispute can be resolved by mediation, and that’s ok as long as we gave it our best efforts.
In conclusion, I would like to thank the Commission once again for inviting me to this forum, and I am happy to answer any questions you might have regarding my remarks.
This page was last modified on December 4, 2003.
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