The Equal Employment Opportunity Commission Mediation Participants Experience in Online Mediation And Comparison to In-Person Mediation

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E. Patrick McDermott, Ph.D.
Franklin P. Perdue School of Business
Salisbury University

Dr. Ruth Obar, Ph.D.
Consultant

 

FEBRUARY 18, 2022

 

TABLE OF CONTENTS

I. INTRODUCTION

II. SUMMARY OF KEY FINDINGS

III. LITERATURE REVIEW ON THE EEOC PROGRAM AND ITS PROGENY

IV. METHODOLOGY 

V. COMPARISON OF THE 2000 IPM AND 2021 ODR MEASURES.

A.   SIX KEY MEASURES FOR COMPARATIVE ASSESSMENT.

1.    FAIR PROCEDURES (PROCEDURAL JUSTICE).

2.    OVERALL FAIRNESS (DISTRIBUTIVE JUSTICE MEASURE 1).

3.    RESULT SATISFACTION (DISTRIBUTIVE JUSTICE MEASURE 2).

a.     OVERALL DATA

4.    WILLINGNESS TO USE EEOC MEDIATION IN THE FUTURE.

5.    PARTY PREFERENCE FOR ODR OVER IPM.

6.    ODR IMPACT ON EMPLOYER PARTICIPATION.

7.    ACCESS TO JUSTICE IMPLICATIONS.

VI. DETAILED COMPARISON OF BENCHMARK MEASURES FROM 2000 IPM AND 2021 ODR.

A.   MEDIATION PROCESS MEASURES COMPARISONS – ODR vs. IPM And CP vs. EMPLOYER.

1.    CUMULATIVE PARTY PROCESS RESPONSES

i.     PROCESS KNOWLEDGE - PRE-MEDIATION/CONVENING ADEQUATE EXPLANATION

ii.     PROCESS KNOWLEDGE AT MEDIATION ONSET

iii.     PARTICIPANT VOICE

2.    MEDIATION PROCESS STATEMENTS BY PARTY

B.   COMPARISON OF MEDIATOR PROCESS STATEMENT DIFFERENCES BETWEEN THE PARTIES FOR 2021 ODR

C.   MEDIATOR CONDUCT MEASURES

1.    CUMULATIVE MEASURES

i.     PRE-MEDIATION NEUTRALITY

ii.     CONTINUING NEUTRALITY

iii.     REALISTIC OPTION DEVELOPMENT

iv.     OPTION GENERATION FOR THE PARTIES USE

2.    MEDIATOR CONDUCT MEASURE BY PARTY SYMMETRY – 2000 vs. 2021.

i.     PRE-MEDIATION NEUTRALITY

ii.     CONTINUING NEUTRALITY

iii.     REALISTIC OPTION DEVELOPMENT

iv.     OPTION GENERATION FOR USE BY THE PARTY

3.    COMPARISION OF MEDIATOR CONDUCT MEASURE DIFFERENCES BETWEEN THE PARTIES FOR 2021 ODR.

D.   PARTY PREPARATION – DID YOU KNOW WHAT YOU WANTED?

VII.        ODR MEASURES ON PROCESS, PARTY, MEDIATOR PERFORMANCE, AND OUTCOME

A.   RESULT SATISFACTION – OUTCOME MEASURES (DID YOU GET WHAT YOU WANTED?)

1.    CP OUTCOMES

2.    EMPLOYER OUTCOMES

B.   TECHNOLOGY AND SKILLS MEASURES

1.    PRIOR VIDEO CONFERENCE EXPERIENCE

2.    DEVICES USED

3.    COMMUNICATION EFFECTIVENESS

4.    TECHNOLOGY ISSUES

C.   PARTY CONDUCT DURING MEDIATION

D.   MEDIATOR ODR PERFORMANCE

1.    MEDIATOR EXPLANATION ON TECHNOLOGY

2.    MEDIATION UNDERSTANDING

3.    PREPARATION/CONVENING – PLATFORM PRE-TEST

4.    TECHNOLOGICAL SKILL

5.    THE BREAKOUT ROOM TOOL

VIII. ADDITIONAL MEASURES

A.   HISTORY OF THE DISPUTE

B.   RELIEF EXPECTED

1.    CP

2.    EMPLOYER

C.   WHERE NO MONEY WAS OFFERED WAS THERE A NON-MONETARY OFFER

D.   IMPASSE – SCOPE OF MONETARY DEMAND

E.    IMPASSE – WAS A DEAL CLOSE OR FAR APART?

F.    MEDIATION BENEFITS

1. CP

2. EMPLOYER

G.   COVID-19 IMPACT ON SETTLEMENT

H.   IMPACT OF ODR ON SETTLEMENT OFFER

I.      PROGRESS AND CONTINUING EFFORTS

IX. A FINAL VANTAGE POINT – COMPARISON OF THE BENCHMARK MEASURE FROM THE IPM, 2018/2019 IPM AND THE 2021 ODR DATA.

X. CONCLUSION

APPENDIX A – PARTICIPANT SURVEY

APPENDIX B – DATA TABLES

APPENDIX C – THREE DATA POINT COMPARISON TABLES

 

 

 

I.                Introduction:

The Equal Employment Opportunity Commission (“EEOC”) mediation program began  with a 1991 pilot program.[1]  An evaluation of the pilot program was performed in 1994 (“McEwen pilot study”).[2]  After the pilot program was expanded nationally, the EEOC commissioned  a comprehensive program evaluation that included a survey of participants’ opinions (“2000 participant evaluation”) followed by an evaluation of the mediator perceptions of the process, the dispute, and the parties (“2001 mediator study ”); and concluding with a 2003 evaluation of the reasons employers declined to participate in EEOC mediation (“declination study”). [3]   

Since the 2000 participant evaluation, the EEOC annually used selected 2000 survey questions to measure participant satisfaction for its in-person mediation (“IPM”).  As a result of the pandemic, by mid-March 2020, the EEOC shifted all IPM to online dispute resolution (“ODR”) using remote video platforms or phones.  In September 2020, Zoom was adopted as the primary platform.  

In September of 2020, the EEOC commissioned an external evaluation of how the 2000 participant evaluation results compared to the EEOC-administered IPM survey responses in June 2018 and July of 2019.  The EEOC later sought external evaluation of its transition to ODR.  This included separate online surveys of the participants’ and mediators’ perspective.  Participants included Charging Parties (CP or CPs), Employers, and Representatives of either party who were predominantly attorneys.  This resulted in a comprehensive database of 2000 and 2018/2019 IPM performance measures plus these same measures for the 2020 ODR transition. The 2021 ODR survey then added a battery of new measures unique to the ODR process.

II.              Summary of Key Findings

The data establishes that ODR is valued by the mediation participants.  Key findings include:

• Ninety-two percent of CPs and 98% of Employers would use EEOC ODR mediation again.
• Procedural Justice measures show that 86% of Charging Parties (“CPs”) and 94% of  Employers view the ODR procedures used by EEOC mediators as fair.
• The Distributive Justice measure of overall fairness shows that 82% of CPs and 91% of Employers view the overall ODR mediation as fair.
• The Distributive Justice measure of outcome satisfaction shows that 60% of CPs and 72% of Employers  are satisfied with the results of the ODR mediation. This outcome satisfaction rate is much higher than the 2000 IPM rate.
• Nearly 70% of the participants prefer ODR to IPM for a future mediation even where IPM is offered by the EEOC. Only 13% preferred IPM in the future.
• While responses to an open-ended question reflect that the COVID-19 pandemic (“pandemic”) influences the preference for ODR, there was extensive data showing that the ODR preference is often related to non-pandemic factors such as flexibility, location convenience, safe space, and efficiency.  In particular, Employers and counsel note the importance of this efficiency in open-ended comments.
• Sixty-two percent of Employers stated that the availability of ODR makes it more attractive for them to participate in EEOC mediation.
• Overall, the ODR measures are similar to or higher than the 2000 IPM measures but not quite as high as the EEOC’s internal 2018/2019 survey using the same benchmark measures.
• CPs overwhelming report that the key issue at impasses is money.  New ODR measures show that at final impasse the parties are far apart on money.  EEOC mediators seldom had an impasse outcome unless the money impasse gap was large suggesting the mediators competently discharged their duties.
• Access to justice is significantly increased by ODR flexibility and location plus Employer willingness to participate in a case resolution via ODR.
• In comparison of measures across the two parties, Employers historically report higher satisfaction across the range of procedural and due process measures including in ODR.
• Where the parties do not settle, 33% report progress was made toward resolution. Thirty-eight percent report no progress with the remaining neither agreeing or disagreeing.
• Overall, the data show that, in general, a CPs best chance for obtaining economic value is at the mediation stage. 
• 68% of the CPs had first attempted to resolve the dispute directly with their employer but were unsuccessful.
•  

III.            Literature Review on the EEOC Program and its Progeny

The 2000 EEOC participant evaluation addressed the parties and representatives vantage point on mediation effectiveness, participant satisfaction, and process variables.[4]  This methodology formed the foundation for similar workplace dispute resolution evaluation of participant satisfaction and process at the State of California Department of Fair Employment and Housing (DFEH) and in the People’s Republic of China at the Dalian, China Labor Arbitration Committee.[5]  The participant evaluation data also resulted in numerous peer reviewed journal articles, book chapters and other academic contributions. [6]

Scholars have called for more evaluation research on workplace mediation.[7]  The pandemic-driven migration to ODR accelerated this need.  Issues include the promise of increased access to justice and the challenge of the digital divide.[8]  Rainey and Bridgesmith, citing Susskind, argue that it is axiomatic that ODR increases access to justice.[9]  They recognize the issue of the digital divide but argue that it is “more feared than it need be”.[10]  They argue that ODR can only be successful if it is seen as fair and accepted by the parties.[11]  In ODR assessment, it is important to consider any evidence of structural bias.[12]

Renowned dispute resolution expert Martin Scheinman, in an early Labor and Employment Relations Association (“LERA”) program that brought practitioners and scholars together to examine the accelerated migration to ODR in the midst of the first wave of Covid-19, commented that while there was much anecdotal observation and opinion, social scientists would provide the final vantage point on the effectiveness of ODR in alternative dispute resolution.[13]

IV.            Methodology 

Using core benchmark measures from the 2000 EEOC participant evaluation, an online participant survey with numerous dedicated ODR questions was created. This development occurred during the debate over the appropriateness of online dispute resolution, how online mediation differed, and early professional discussions on online mediation efficacy. The survey authors attended professional conferences, communicated with dispute resolution professionals, and read professional and practitioner journals and discussion posts to assist in the development of ODR measurements.[14]  The survey considered these various practitioner and expert opinions on ODR and developed and vetted measures for empirical analysis.[15]

The online survey was developed and tested over 10 months.  The researchers oversaw the  administration of the survey by the EEOC with its Verint survey management software. The instrument continued the 2000 and 2018/2019 participant measures, referred to herein as the “benchmark measures”.  The ODR instrument added an array of new measures to capture the participant experience with ODR, mediator and mediation effectiveness, technology issues, and insights into new patterns of mediation in ODR.  The survey was pretested by the EEOC’s 16 Supervisory ADR experts from May 17, 2021 through May 20, 2021.[16]   

The participant survey opened on August 23, 2021 and closed on November 17, 2021. The EEOC stopped sending invitations to new mediation participants after this date, although follow-up emails continued to previous recipients of the survey who have not yet responded. The data reflects responses received through December 13, 2021. The survey was sent by email and solicited the CP and Respondent (hereinafter referred to as “Employers”) as well as party representatives. The research protocol included a mediator explanation at the start of the mediation that the participants would be asked to participate in an online survey via email after the close of the mediation. The mediator repeated this at the close of the mediation reinforcing that the survey was confidential and was being performed by independent outside scholars; the mediator encouraged participation.

After the mediation closed, within the next few days, the participants received the survey prompt by email. The EEOC sent four sequentially spaced follow-up emails during the survey period. The survey provided a skip process so that a party or representative who had previously participated in an online mediation during the survey period could skip some measures to avoid gathering duplicate data.

Two thousand three hundred eighty-seven mediation participants received the survey by email.[17]  One thousand one hundred ninety-seven (50%) answered the full survey and another 37 (2%) answer the short version for repeat responders. One thousand one hundred and fifty three (48%) did not elect to participate; this included those who did not consent, left the survey blank or answered very few questions. These persons were offered the opportunity to explain why they declined to participate but elected not to respond.

 

One thousand two hundred thirty four surveys form the database.[18]  Five hundred eleven surveys were from Employer representatives (41%).   Two hundred seventy one (22%) identified as the Employer.  Two hundred twenty seven (18%) were from CP Representatives and 225 (18%) were from the CP.   For those who reported themselves as representatives of a party, 83% were attorneys. Nine percent were company Human Resource representatives.  About 3% identified as upper level management; less than 1 percent identified as immediate supervisors, union representatives, labor relations personnel, consultants, or friends appearing as representatives.[19]

The survey also sought to identify if the parties report that an insurance company is involved and whether an insurance adjuster was participating in the mediation. Twenty one percent reported the involvement of an insurance company, 64% said there was none, with 15% uncertain.  Where an insurance company is involved, only 26% reported the participation of an adjuster in the mediation session.

Twenty-eight percent of the cases did not result in a settlement after the mediation.  Seventy-five percent of the cases were settled or awaiting final signing of the agreed upon deal.  In 6%, mediation is continuing.

V.              Comparison of the 2000 IPM and 2021 ODR Measures.[20]

A.    Six Key Measures For Comparative Assessment.

The first set of data reports key measures on the ODR program compared to our 2000 IPM data.[21]  The first four are the same benchmark measures first used in 2000.  The final two are direct questions that test how the parties compare ODR to IPM on the key measures of preference and employer willingness to participate in ODR vs. IPM.[22]  The data chart reports the 2000 and 2021 measures.  It also reports the difference between the CP and Employer measures, which will be addressed where salient.

1.     Fair Procedures (Procedural Justice).

The survey asked if the procedures used by the mediator were fair.  This a key cumulative measure that arguably subsumes the many more focused individual measures of procedural and substantive due process detailed below.  For ODR, 86% of the CPs and 94% of the Employers report fair procedures.[23]  When comparing the 2000 IPM measure to ODR, the fair procedures measures for both parties are similar.   Table 2 below shows that the CP measure is 2%-point less for ODR; there is a 2%-point increase for Employers. 

Using the mean or average ratings scale from 1 to 5, CPs have significantly lower average satisfaction compared to Employers: 4.33 and 4.44, respectively in 2000 and 4.36 and 4.52, respectively in 2021.24

As a whole, participants in 2021 ODR have statistically significantly higher average ratings to the statement that the procedures used by the mediator were fair: (4.45) compared to participants in 2000 IPM (4.38).

2.     Overall Fairness (Distributive Justice Measure 1).

            In addition to procedural fairness, the survey attempts to measure overall “fairness”.  This is a distributive justice measure.  It asks if the parties were satisfied with the fairness of the mediation.  In 2000 IPM, 79% of CPs and 87% of Employers report fairness satisfaction.  These percentages increased substantially in 2021, with 82% and 91% for CPs and Employers, respectively.  Using the overall mean rating the increase in fairness satisfaction between these two periods is statistically significant – from 4.19 in 2000 to 4.39 in 2021.  As in the previous measure, CPs have a lower level of satisfaction compared to the Employers.

3.     Result Satisfaction (Distributive Justice Measure 2).[24] 

a.      Overall Data

The survey asks a second, more focused, distributive justice question -  was the party satisfied with the results of the mediation.  For ODR, 60% of CPs and 72% of the Employers were satisfied with the results. In 2000 IPM 55% of CPs were satisfied with the results, 5%-point less than in the 2021 ODR data.  In the same period 63% of Employers were satisfied, 9%-point less than in the ODR data.  Results of comparing the mean differences between the two periods show statistically significant improvement from an average of 3.52 in 2000 to 3.87 in 2021.

 

4.     Willingness to Use EEOC Mediation In The Future.

The survey asked the participant if they would be willing to participate in the EEOC mediation program in the future. In 2000, 93% of the CPs reported that they would participate again.  For ODR, 92% stated that they would use the program again, similar to the 2000 IPM results. 

Employers show consistent “acceptance” of the EEOC mediation program– almost all employers (98%) are willing to participate in EEOC ODR mediation if they were a party to a charge in the future. 

This “willingness to return” is a key measure, along with the prior overall fairness, process fairness and result satisfaction measures.  When viewed together, they suggest that similar to IPM in 2000,  ODR in 2021 is highly valued by the parties. 

5.     Party Preference For ODR Over IPM.

Parties were asked if they preferred ODR over IPM for future cases.  The question asked if the participant would prefer ODR even if in-person mediation was offered.  Sixty-six percent either strongly agreed (39%) or agreed (27%).  Only 13% preferred IPM with 21% neither agreeing nor disagreeing.  Fourteen percent of CPs and 12% of Employers prefer IPM.

For those who preferred ODR the survey asked why.  A closed-end list was used along with an open-ended option.  In addition to the closed-end selections the survey sought other reasons for preferring ODR.  These comments provided great insight into why many prefer ODR. The data show that location convenience/challenge, attendance of others who may not readily attend in-person mediation, flexibility, efficiency, safe space and cost considerations  are some of the most important reasons for preferring video mediation to in-person mediation. While some comments indicate that the pandemic was a factor, the data and these comments establish ODR as a preferred process for various other reasons. [25]

 

 

            The succeeding four tables provide the participants’ reasons, in their own words, for preferring video mediation to in-person mediation including the various factors that participants consider or experience when participating in mediation.  The comments generally note  the convenience, less stressful experience, safe space, cost saving or efficiency, flexibility and other factors that make ODR more attractive.   

 

 

 

 

 

 

 

 

 

 

6.     ODR Impact On Employer Participation.

The survey asks Employers if the use of ODR made it more attractive for the Employer to participate in the EEOC mediation program.  Sixty-two percent either strongly agreed (24%) or agreed (38%) that the use of a video platform makes it more attractive.  Only 5 percent disagreed or strongly disagreed with the statement that ODR mediation was more attractive for employers. This is another example of the additional access to justice provided by the EEOC’s use of ODR; it suggests that ODR convenience brings the employer to the negotiation table.

7.      Access to Justice Implications.

The six key measures data suggests that ODR is as effective as IPM on key benchmark measures and is preferred by the parties for reasons beyond the pandemic.  The data establishes that it increases access to justice.  First, ODR provides greater access to justice to CPs who may otherwise not have been able to participate in mediation for reasons beyond the pandemic. Second, about 20% of CPs don’t want to be in the same location as the Employer, which we see as a “safe space” issue.  Third, access to justice is improved when more Employers are willing to come to the table to negotiate.   

VI.            Detailed Comparison of Benchmark Measures From 2000 IPM and 2021 ODR.

There are additional detailed measures that address the various elements of mediation in both IPM and ODR.  This includes in-depth procedural and distributive justice measures including mediator conduct and option generation, convening, process understanding, voice, perceptions of outcome, and satisfaction measures. The data is reported by comparison of 2000 IPM to 2021 ODR and also by comparison of CP to Employer measures.  The totality of this granular data further buttress the data found in the six key measures reported above.

A.              MEDIATION PROCESS MEASURES COMPARISONS – ODR vs. IPM And CP vs. EMPLOYER.

1.     Cumulative Party Process Responses

                                                    i.     Process Knowledge - Pre-mediation/Convening Adequate Explanation

The 2000 and 2021 ODR data reflect a consistent pattern where most participants report that prior to the mediation they receive an adequate explanation about the mediation from an EEOC representative.  Eighty-seven percent of 2000 mediation participants and 85% of 2021 participants agreed that they received an adequate explanation prior to the start of the mediation session.  (See Table 5 below.)

                                                  ii.     Process Knowledge at Mediation Onset

The next measure seeks the participants’ reported understanding of the mediation process at the start of the mediation.  The 2000 survey asks if after the mediator's introduction at the mediation session, the party believe they understood the mediation process.  Ninety four percent reported they understood the mediation process.  

For the ODR survey the question focused on whether the parties understood how to use the mediation technology.  This is an important question since the addition of technology in the mediation process is a major factor that could undermine its effectiveness.  Results show that almost 9 in 10 (88%) understood the process, close to 1 in 10 (8%) are unsure, and a small minority (5%) did not understand the use of the mediation technology.  Comparing the two parties, the proportion of CPs who understood how to use the technology is slightly lower than the Employer (85% and 89%, respectively). 

                                                iii.     Participant Voice

Participant voice is measured by asking whether one had “full opportunity to present my view”.  The overall results are impressive.  Almost everyone believed that the mediation offered full opportunity to present their views (92% in 2000 and 93% in 2021). 

Eighty-seven percent of the CPs compared to 95% of the Employers reported that they had a full opportunity to present their views during the mediation process.  This is a 3%-point drop from 2000.  For Employers the results are about the same with 95% reporting the full opportunity to present their views.

 

 

2.     Mediation Process Statements By Party

The data reflects an overall slight decrease in CP process measures between 2000 and 2021.  For example, the adequate explanation measure and opportunity to present views measure drop 3%-points.  Results for Employers show a slight increase and no change for the same measures.

 

 

B.    Comparison of Mediator Process Statement Differences Between The Parties For 2021 ODR

The CP and Employer ODR measures are compared for significant disparity with means difference testing.  The only significant difference is for the opportunity to present one’s views where the CP measure (87%) vs. the Employer measure (95%) was significant.  Thus, while both measures are very high, and should be deemed as a success, Employers report an extremely high opportunity to present their views.

 

C.    MEDIATOR CONDUCT MEASURES.

1.     Cumulative measures

i.                 Pre-mediation Neutrality

The program consistently scores high on perceptions of pre-mediation neutrality.  A high percentage of participants considered the mediator to be neutral at the start of the mediation:  92% in 2000 and 94% in 2021.  In 2021, we see a 5% difference between the parties in this measure:  91% of CPs versus 96% of Employers considered the mediator neutral at the start of mediation.  See Table 8 below.

ii.               Continuing Neutrality

Participants’ perception of the mediator’s continuing neutrality remains high at 90% in 2000 and 91% in 2021. 

iii.             Realistic Option Development

This is the first of two measures on mediator problem-solving.  Agreement with this option generation measure was 75% in 2000 and 80% in 2021.  Historically, this is one of the lower measures because the survey seeks “realistic” options that were developed from the eye of the beholder - which are often inextricably linked to a negotiation position on what one is entitled to in negotiation.  Even with this very subjective measure, 8 in 10 parties in ODR reflect that the mediation met this difficult standard.

iv.             Option Generation For The Parties Use

The survey also measures option generation from a different frame without using the word “realistic” but rather focusing on the parties use of the options generated.  The focus is on the mediator assisting the parties in the development of options.  Parties are asked if they thought the mediator helped the parties develop options.  This shifts the inquiry from mediator development of options to mediator assistance in the development.; this question asks about both parties being assisted from the vantage point of each party.  There is a 2%-point drop in this measure.

 

 

2.     Mediator Conduct Measures By Party Symmetry – 2000 vs. 2021.

This set of data compares the CP and the Employers cumulative responses to the questions.  It then compares the 2000 evaluation results to the 2021 results.  This provides insight into the symmetry of party perceptions on a wide range of measures in IPM vs. ODR.

i.                 Pre-Mediation Neutrality

In 2000 both parties reported a 92% measure – perfect symmetry.  In 2021, there is a 5% difference between the parties with 91% percent of CPs versus 96% of Employers considering the mediator neutral at the start of mediation. This is an interesting disparity complicated by the deviance in ODR “convening” by EEOC office.  Some mediators engage the parties prior to mediation while in other offices there is minimal pre-mediation contact.   

ii.               Continuing Neutrality

In 2021 there was a 2% difference with the CP seeing the mediator remaining neutral at 91% vs. 89% for the Employer.  In 2021 there is 4% drop in CP perception of the mediator remaining neutral in contrast to a 5% increase in Employer perception that the mediator remained neutral.  This is an overall 9% spread in perception of continuing neutrality in 2021 vs. the 2% in 2000.

iii.             Realistic Option Development

In 2000 there was near symmetry with 75% of CPs and 76% of Employers reporting realistic option development.  In 2021, 77% of CPs and 81% of Employers report that in ODR the mediators developed realistic options.  There are two increases here.  First, in both parties report an increase in the development of realistic options in ODR vs. IPM.  Second, the symmetry between the parties in ODR spreads from 1% to 4% more Employers reporting realistic options.

iv.             Option Generation For Use By The Party

In 2000, there is near symmetry with 1% more CPs reporting option generation for parties use (85% vs. 84%).  There is a 6% spread for  ODR with 79% of CPs and 85% of Employers agreeing that the mediator helped the parties develop options.  This is an overall shift of 7% in the symmetry (+1% CP in 200 to -6% in ODR).

 

 

3. Comparison Of Mediator Conduct Measure Differences Between The Parties For 2021 ODR.

The next analysis looks at symmetry of the mediator conduct measures with the ODR process.  Are the measures balanced by party?

There is only one significant difference for the 2021 mediator conduct measures by party.  This is for the mediator remaining neutral, where almost nine out of 10 CPs report that the mediator remains neutral while an extremely high percentage of Employers (94%) report the same.  These percentages correspond to average ratings of 4.28 for CPs and 4.52 for Employers. 

 

 

D. PARTY PREPARATION - DID YOU KNOW WHAT YOU WANTED?

In assessing outcome measures, it is important to first know if the party knew what they wanted going into mediation.  It could be argued that not knowing impacts one’s later opinion of the results; one can question whether the party formed realistic positions and attitudes. The data shows a major shift where those going into ODR have a better idea of what they wanted to obtain.  In 2000 17% of CPs and 14% of Employers reported they did not know what they wanted.  With ODR this measure dropped significantly to 7% for CPs and 6% for Employers.  ODR appears to have better prepared parties. One explanation is that parties in ODR use the Internet to better prepare.  It is even possible that this measure taken after mediation is completed may conflate information learned while multi-tasking in mediation with pre-mediation knowing what one wanted. Finally, since many of the survey respondents are representatives, and thus “repeat players”, it may be that prior experience, standing alone, allows one to formulate their goals.  EEOC mediation has matured greatly since 2000 and one must assume some of the parties are more sophisticated.

 

 

VII.         ODR Measures On Process, Party, Mediator Performance, and Outcome.

The survey asked a range of new questions to measure what is going on in ODR and issues arising in this forum.  For these data, there are no prior benchmarks; the measures are focused on what is happening in the recently introduced ODR model.  The survey identifies impasse data, in-mediation party conduct, ODR Zoom tool usage, convening conduct, device and technical issues, repeat player issues, whether there exists “Zoom fatigue” and other measures in the new pattern of mediation in ODR.

A.    Result Satisfaction – Outcome Measures (Did You Get What You Wanted?).

1.     CP Outcomes

Mediation is facilitated negotiation.  The 2021 ODR survey delves into how the negotiation outcome is viewed by each party. 

For the 2000 survey, the parties who reported they knew what they wanted were then asked whether they obtained what they wanted.  CPs obtained what they wanted in 42% of the cases in 2000.  The 2021 ODR survey sought similar, but much more detailed measures.  The survey asked if the party received “nothing”, “some”, “much or majority” or “everything” that they wanted.  In ODR 33% of the CPs.  Thus, 67% of CPs obtained some value in the negotiation – but how much?  Thirty-two percent of the CPs reported they got “some” of what they wanted.  Twenty-nine percent reported they got “much or a majority” of what they wanted going into mediation.  Seven percent reported they got all that they wanted. While the ODR data shows much higher percentages of parties getting what they wanted, these are not directly comparable to the 2001 measure since the Yes/No options in the previous survey was more restrictive. 

 

 

This data can be viewed from another vantage point with external data for comparison.  From a CP outcome perspective, for FY 2020, the EEOC found Reasonable Cause of a violation of the law in 17% of the charges filed.[26]  Almost sixty-seven percent resulted in a No Reasonable Cause Finding and another near 16% were “administrative” closings.  Thus, over 80% of charges filed are not seen as meritorious by the EEOC either before or after investigation.[27]  The statistics reflect that since FY 2016 there are similar numbers where over 80% of the case do not result in a meritorious finding .[28]  From this vantage point, at the EEOC, in mediation where no investigation and EEOC finding has yet occurred, 67% report some benefit while if they proceed to investigation in FY 2020, the most recent data, there was a 17% chance of a “merit resolution” which was the highest percent for the prior five years.[29]

Finally, where the CP proceeds on their own and elects to file in court in federal court after obtaining a Right to Sue Letter (“RTS”), including RTS Letters where the EEOC has found Reasonable Cause, scholars have documented that plaintiffs seldom prevail.  Decades of empirical analysis establishes that claims of employment discrimination tend to fare more poorly in court compared to other civil claims.[30]   Between 1978 and 1985 plaintiffs in employment discrimination prevailed at trial in 2% of the verdicts.[31]  Clermont and Schwab found that employment discrimination plaintiffs lose at nearly every stage  of litigation, excluding the effects of settlement. They noted that plaintiffs prevailed in about 19% of bench trials where judges ruled and about 37% of jury trials[32] compared to other types of cases which are won approximately 45% of the time regardless of judge or jury type.[33]  Federal employment discrimination plaintiffs, compared to non-civil rights plaintiffs, "manage fewer resolutions early in litigation, and so they have to proceed to trial more often. They win a lower proportion of cases during pretrial and at trial. . . . On appeal, they have a harder time both in preserving their successes and in reversing adverse outcomes."[34]

Eisenberg reinforces Clermont and Schwab’s finding noting that “employment discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent”.[35]  From 1988 to 2003 Eisenberg reported statistics from the American Bar Foundation, an arm of the American Bar Association, showing that in all federal court filings, (1,672 cases) 19% of cases were dismissed on early motions to dismiss, 50% settled early, 18% were lost on summary judgment, 8 % were settled after summary judgment, and 2% were won at trial.[36]

For CPs, the mediation data suggests that ODR and EEOC mediation in general, is an attractive opportunity to resolve a charge with value.

2.     Employer Outcomes

Employers were asked if they obtained the outcome they sought.  The 2000 IPM data show that 58% of employers obtained what they wanted.  In the more detailed 2021 ODR results, twenty percent reported they got nothing and 20% reported they obtained all that they wanted.  Twenty five percent reported they obtained some of what they wanted with 36% reported they obtained a majority of what they sought.

 

 

Where the Employer did not get anything the survey sought to identify why from a list of reasons plus open-ended options.  Employers report that where the mediation was not resolved (“nothing” measure) the primary reason was that the CP sought an excessive amount of money. There were a few (13%) where a non-monetary demand was the impediment.  The italicized responses in the table below provide responses on why employers report receiving nothing. 

 

 

B.    Technology and Skills Measures 

1.     Prior Video Conference Experience

Overall ninety-six of the parties and representatives reported that they had prior experience with online video platforms. For CPs and representatives, 8% did not have prior experience, while only 2% of employers and representatives did not have prior experience. 

2.     Devices Used:

The survey sought detailed information on the devices used by the parties.  This provides insight into how parties communicated and also possible multi-tasking activity.  Seventy-four percent used only 1 device.  Twenty-two percent used two devices.  Four percent used 3 or more devices. 

The survey then asked participants to identify the types of devices used.  Eighty-eight percent reported the use of a laptop or desktop computer in mediation.   Twenty-eight percent used a cell phone.  Eight and one-half percent used a landline phone; 6% used an I-Pad or other tablets.

When asked for the device that they used for video mediation, 86.5% used a computer, with 9% using a phone, and 4% using a tablet or an I-Pad. 

3.     Communication Effectiveness

The survey asks whether the party was able to communicate effectively with other participants with their device.  Eighty-five percent reported effective communication with 55% strongly agreeing and 30% agreeing.  Twelve percent had problems - 11 percent strongly disagreed and 1% disagreed.  Comparison by party shows a slightly higher percentage of CPs and Representatives disagreed with this statement compared to Employers and their Representatives (14% and 10%, respectively).

 

 

4.     Technology Issues 

The survey sought to measure technology issues arising during the mediation.  We asked for major issues and provided a checklist that may have encouraged identification of all issues.  Among the 138 survey participants who could not effectively communicate with the other party, very few identified any specific technical issues or equipment problems. 

C.    Party Conduct During Mediation

The survey asked the parties to identify activities that they engage in during the mediation.  This is important because the ODR format provides opportunities for a participant to engage in a range of activities not found in the traditional in-person mediation and in particular the joint session.  The question sought to determine if there was participant conduct unique to ODR such as simultaneous online researching, communication or other conduct less common in IPM.  Fifty-nine percent reported that they did not engage in other activity during mediation.  Eighteen per cent engaged in non-mediation related activity. Others used the time in mediation for mediation activities such as: contact others to ask for advice (8%), help reach a decision (7%), help with mediation (5%).  Five percent used the internet to research a mediation issue or topic.

D.    Mediator ODR Performance 

Participants were asked about their perceptions of the mediator’s online skills, use of the breakout room, convening and other ODR skills. 

1.     Mediator Explanation on Technology

This measure is different from the historical measures of prior mediator introductions due to the focus on explanation of the technology component.  The data shows the mediator effectively explained the ODR technology.  Only five percent reported that after the mediator’s explanation they did not understand the technology.  This was segmented into 6% of the CPs and 4% of the Employers. 

2.     Mediation Understanding

The survey added a question to complement our historical benchmark question on party understanding of the process.  Parties were asked when they first understood the process.  Only 4% indicated that this occurred during the mediation.  Six percent of the CPs and 3% of the Employers first gained understanding of mediation during the session.   Most obtained prior knowledge from a wide range of sources including counsel, prior experience, prior communication with EEOC personnel and other pre-mediation activities.  These results, when added to the prior benchmark explanation measure, show that almost all parties have a grounding on how mediation operates in ODR prior to the mediation.  Almost 6 in 10 of the total participants in ODR are “repeat players”:  44% of CPs had experience with mediation prior to the current case.  The number is higher for Employers at 65%.  These data include responses from the parties and their representation which is almost always an attorney. The data shows that among those who received adequate explanation prior to the mediation, about half  (52%) had the mediators who engage in convening conversations with the parties.  This number is higher for CPs (61%) than for Employers (47%).

 

 

3.     Preparation/Convening – Platform Pre-test.

The survey asked whether the mediator tested the video platform prior to mediation. 

There is another near 50/50 convening split where 53% pre-tested and 47% did not.  CPs report a higher pre-testing of 57% vs. 51% for Employers.  

4.     Technological Skill

Ninety-two percent reported that the mediator was skilled in the technology.  Only 2% disagreed.  Only 3% of CPs disagreed and this was 1% for Employers. 

5.     The Breakout Room Tool

Ninety-one percent reported that the mediator made effective use of the breakout room tool.  Only 3% disagreed.  88% of CPs report effective use of this tool compared to 93% of Employers.

VIII.       Additional Measures

 

A.    History of the Dispute

The survey asked if the CP first tried to work the dispute out directly with the Employer.  Thirty-two percent did not make any such effort while 68% tried to find an earlier resolution.

B.    Relief Expected

The survey sought to identify the type of relief expected by the CP and the Employer.  This is for those who indicated that they knew what they wanted going into the mediation.

1. CP

Forty-two per cent of the CPs sought a monetary offer.  Three percent sought a non-monetary offer.  Fifty-five percent sought combined relief.  Thus, for 97% of the CP sought money as all or part of the relief.

2. Employer

For Employer expectations the survey provided a list of options plus an open-ended response.  Fifty-seven percent reported they wanted to resolve the issue to save organizational time.  Eighteen percent were motivated to save the costs of defending the case at EEOC.  Eight percent sought to resolve the dispute and continue the employment relationship; 2% believed that they made a mistake and were seeking to correct it.

 

 

C.    Where No Money Was Offered Was There A Non-monetary Offer

The survey sought to identify for those cases where the CP reported obtaining nothing, whether the Employer made a non-monetary offer that was rejected by the CP.  For  the 39 CPs who reported obtaining nothing, 33% reported that a nonmonetary offer was made but the CP rejected the offer in favor of not settling the case. 

 

D.    Impasse – Scope of Monetary Demand

It was reported earlier that 87% of Employers stated that the reason for impasse was what they saw as an excessive monetary demand by the CP.  Where the CP obtained nothing the survey sought to identify the amount of the monetary demand.  The majority of impasse occurs at CP demands of over $40,000 (78%);  at $100,000 the likelihood of  impasses increases.  At CP demands of $75,001 and above about 60% of the impasses are found.  We note that each case is unique with the damage demands based are different based on a multitude of factors.  Also, our response rate is 39 cases only and six also had a nonmonetary request.  These results do suggest that as the damages sought increase, the likelihood of resolution on one session drops.

E.     Impasse – Was A Deal Close or Far Apart?

This next measure sought to determine if the parties were closer than they realized in their “monetary divide”.  This analysis is not ODR-driven but rather a new area of exploration flowing from the 2000 study.  This measures whether the ODR results had a process failure at impasse where the parties were closer in monetary numbers than was realized. Where the case is identified as not resolved due to money, the data shows that impasse seldom occurs where there is a monetary spread of less than $10,000 (14%).  Forty percent of cases that do not settle have an impasse spread of over $50,000.  These data suggest that where impasse occurs it is not over a small difference but sizeable disagreement.  Given that Employers report that 87% are not resolved due to what the Employer sees as an excessive monetary demand, this data suggests that the mediators are resolving the majority of cases where the parties are close.

 

 

F.     Mediation Benefits

1.     CP

The mediation produces a wide range of benefits to those negotiating.  For half of the CPs and their representatives the monetary settlement is the main benefit.  Three in ten consider the ability to address their concerns as another important benefit of mediation.[37]

 

 

 

2.     Employer

For Employers, demonstrating that they did not violate and law (66%) and closing the case/moving on (59%) were the two most important benefits from the mediation.  Almost half (42%) mentioned that being able to demonstrate their respect for the opposing party and their perspective is another benefit from going to mediation.[38]

 

G.    Covid -19 Impact on Settlement

The survey also sought to determine if the Covid-19 pandemic has affected the amount of money that the employer settled cases for.  Only 12% of the Employers reported less monetary flexibility due to Covid-19. Most reported no change.

H.    Impact of ODR on Settlement Offer

The survey also asked employers if the online format influenced the amount of money offered in EEOC mediation.  The data show no impact.  The data was tallied  separately for CP and Employer counsel survey respondents.  Seventy six percent saw no change in client conduct while 22% saw less flexibility.

I.      Progress and Continuing Efforts

Where the ODR case was not resolved, the survey measured if the parties saw progress from the mediation.  One-third reported progress toward a final resolution. 

 

 

The survey identified the next steps in the dispute given that there was no resolution.  Most (46%) will wait to see the results of the EEOC investigation that ensues once mediation fails.

 

 

 

IX.             A Final Vantage Point – Comparison of the Benchmark Measures from the 2000 IPM, 2018/2019 IPM and the 2021 ODR Data.[39]

This analysis introduces the EEOC’s 2018/2019 June/July surveys taken for internal performance measures in 2018/2019 using the 2000 participant evaluation benchmark measures.  With the data gathered over two decades, including the 2000 and 2018/2019 hard copy surveys administered at the conclusion of the IPM mediation plus the 2021 ODR data, this report compares the benchmark measures.   There are two caveats. First, the 2018/2019 surveys were not administered under the auspices of the external research team subject to research protocols and external researcher quality control.  Second, the 2021 ODR data is arguably less subject to influence than the prior surveys because of its online format.  Previously the IPM surveys involved completion of the IPM survey at the mediation site where it was often distributed and collected by the mediator.  The ODR online survey chain of custody is more reliable.

Overall, the 2000 IPM, 2018/2019 IPM and 2020 ODR data has a relatively consistent pattern.  2021 ODR and 2000 IPM data are similar with overall high performance on the benchmark measures.  From 2000 to 2018/2019 data there is a discernable improvement in the benchmark measures.  In the transition to ODR these high performance measures generally drop back but are generally higher compared to the 2000 IPM level.   This pattern is found for the key measures of procedural and overall fairness; and satisfaction with the results reported out earlier.

Tables 23 to 25 present 3-period comparisons of the participants’ average ratings.  For the three periods, three pairs of comparison can be made: (a) 2000 IPM versus 2018/19 IPM ratings, (b) 2000 IPM versus 2021 ODR ratings, and (c) 2018/19 IPM versus 2021 ODR ratings.  The statistical results of each of these pair-wise comparisons are shown immediately under each statement.  When bolded (i.e., p-values less than 0.05) the pair-wise difference is statistically significant.

A.    Participant Perception of Fairness and Satisfaction.

The results for these statements show the general pattern described above.  There is a statistically significant improvements from the 2000 IPM average ratings compared to the 2018/19 IPM and the 2021 ODR average ratings.  Average ratings for the 2018/19 IPM data are highest, except with satisfaction with the results of the mediation.  In this case, the 2018/19 IPM ratings and 2021 ODR ratings are statistically identical at 3.86 and 3.87.

 

 

B.    Responses to Statements Concerning the Mediation Process

The table below establishes that the 2021 ODR is on par with the 2000 IPM data, and that the EEOC’s internal survey in 2018/2019 produced higher measures than both 2000 IPM and 2021 ODR for adequate explanation and full opportunity to present views. 

 

 

C.    Responses to Statements Concerning the Mediator

For statements concerning the mediator, the 2000 IPM results show the lowest average ratings regarding mediator neutrality and option development.  The 2000 ratings are statistically lower compared to the 2018/19 IPM ratings for all four statements below.  Compared to the 2021 ODR ratings, the ratings are statistically similar except for the development of realistic solution by the mediator.  Here the average rating rose from 3.97 in 2000 to 4.19 in 2021.   

 

 

D.    Willingness to Use EEOC Mediation in the Future

The 3-survey period comparisons show a very high degree of “acceptance” of the EEOC mediation program based on their willingness to use the program again.  There is near unanimity in participants’ willingness to participate in the program in the future.

 

X.              CONCLUSION

As previously reported, from 2000 to 2018/2019 the EEOC’s in-person mediation (IPM) program improved over a range of measures reflecting the maturation of a program that established its mainstream position in employment dispute resolution.  In 2020, as a result of health and safety protocols implemented in response to the COVID-19 pandemic, the EEOC’s IPM mediation model pivoted entirely to an online dispute resolution (ODR) format.  This was an untested model. 

This new ODR model of mediation possesses novel tools, flexibility, convenience, cost savings, and safe space for key participants. Analysis reveals that the Charging Parties, Employers, and all Representatives who participated in EEOC ODR, and responded to the survey, prefer ODR over IPM.  Survey respondents report high process and outcome satisfaction ratings, and minimal issues with ODR.  Similarly, an analysis of survey responses to the extensive procedural and distributive due process measures suggests a positive program impact. The overall results from this 2021 ODR evaluation are consistent with the EEOC’s initial evaluation of its mediation program in 2000.

The current data show that ODR mediation operates as an effective negotiation process where one doesn’t always get what they want, outcome satisfaction is high in that context, and for the cases that end in impasse the parties’ expectations are far apart.  The data suggest that the mediators’ performance indicates that where there is impasse, it is not over a minor or medium difference in party position. 

The results suggest that the pivot to the ODR model was successful. The EEOC experience demonstrates that ODR may be a sustainable new pattern of mediation.  It can be argued that even with a response rate of 52%, the results reported in this process evaluation only reflect the experiences reported by those who completed the survey.  However, preliminary analysis that triangulates the participant study data with the data from a separate mediator study performed for the EEOC – where mediators offer opinions on the experiences of all participants in the mediation – suggests similar positive participant experience.[40]  These two data sets were gathered in close temporal proximity.[41] 

After the 2000 evaluation, these authors reported that the EEOC had “hit a home run” in its mediation program performance.  Twenty years later, without a playbook, there is a similar result with even greater import.  This ODR program data suggests to the dispute resolution community and the U.S. legal system that new and flexible online mediation procedures are seen by all the parties and representatives as efficient, flexible, cost-saving, attractive, and preferable to traditional in-person mediation.

 

 

APPENDIX A – PARTICIPANT SURVEY

 

Test Copy 2021 Mediation Participant Survey - Copy [English (United States)]

 

EEOC Mediation Participant Survey
 

This is a confidential survey. You are being asked to complete this survey due to your recent experience in an EEOC mediation. Your responses go to third-party independent university researchers, Dr. E. Patrick McDermott and Dr. Ruth Obar at Salisbury University. 

Participation is voluntary and will have no impact on your case at the EEOC. The purpose of this confidential survey is to assess your satisfaction with EEOC's Mediation program. The survey asks participants to answer a series of questions. We estimate it will take you less than 15-20 minutes to complete this survey. We ask you a series of questions about your mediation experience. You must be at least 18 years old to take this survey. All information obtained during this survey will be collected through Verint, a secure survey software developed by a third-party contractor.  

The benefits of this study include you helping us to improve mediation at the EEOC and to better understand the experiences of our mediation participants. The university researchers will prepare a report for the EEOC, and they may use the data for other research purposes in the future.
 

Your responses will be reported in an aggregated form so that no one will know your individual response to protect confidentiality. For a few questions we provide a chance for you to provide additional written comments. For these responses the researchers will use their expertise to ensure that these responses will not identify you or allow anyone to determine that this was your response.

 

We ask that you try to answer all questions; however, if there are any items that make you uncomfortable or that you would prefer to skip, please do so.
 

If you have any questions or concerns about the survey, please feel free to email the Research Team at epmcdermott@salisbury.edu

 

 

 

1. To ensure confidentiality, only the last six digits of your charge number is shown

   Charge number: ________________________________________

 

 

2.

Please check the box below to provide your consent to participate in the survey.  Once you consent the survey will open for you to take. 

 

 

I CONSENT TO PARTICIPATION IN THIS SURVEY

I HAVE COMPLETED THIS QUESTIONNAIRE IN A PREVIOUS CHARGE BUT I CONSENT TO ANSWERING A FEW QUESTIONS THAT ARE SPECIFIC TO THIS CURRENT CHARGE

I DO NOT CONSENT TO PARTICIPATION IN THIS SURVEY

 

Branch to: Page 3 (2 = I HAVE COMPLETED THIS QUESTIONNAIRE IN A PREVIOUS CHARGE BUT I CONSENT TO ANSWERING A FEW QUESTIONS THAT ARE SPECIFIC TO THIS CURRENT CHARGE)
 

(End of Page 1 )
 

This Page is Conditionally Shown if: (2 = I DO NOT CONSENT TO PARTICIPATION IN THIS SURVEY)

46. Can you confidentially share with us the reason you have not consented?  This is very important for the researchers.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

Destination: Survey Submitted (Set in 46)
 

(End of Page 2 )
 

This Text Block is Conditionally Shown if: ( 2 = I HAVE COMPLETED THIS QUESTIONNAIRE IN A PREVIOUS CHARGE BUT I CONSENT TO ANSWERING A FEW QUESTIONS THAT ARE SPECIFIC TO THIS CURRENT CHARGE)
Thank you for previously participating in our survey.  Please answer the following questions that are specific to this current charge or mediation.

4. I am the:

Charging Party

Charging Party Representative

Respondent

Respondent Representative

 

Branch to: Page 4 (2 = I HAVE COMPLETED THIS QUESTIONNAIRE IN A PREVIOUS CHARGE BUT I CONSENT TO ANSWERING A FEW QUESTIONS THAT ARE SPECIFIC TO THIS CURRENT CHARGE AND(4 = Charging Party OR4 = Charging Party Representative OR4 = Respondent OR4 = Respondent Representative))
 

(End of Page 3 )
 

49. Is an insurance company involved in this case?

Yes

No

Not sure/don't know

 

This Question is Conditionally Shown if: (49 = Yes)

50. Was an insurance adjuster present during or at any time in the mediation?

Yes

No

 

Branch to: Page 13 (2 = I HAVE COMPLETED THIS QUESTIONNAIRE IN A PREVIOUS CHARGE BUT I CONSENT TO ANSWERING A FEW QUESTIONS THAT ARE SPECIFIC TO THIS CURRENT CHARGE AND(4 = Charging Party OR4 = Charging Party Representative OR4 = Respondent OR4 = Respondent Representative) AND49 ≤ Not sure/don't know)
 

(End of Page 4 )
 

This Question is Conditionally Shown if: (4 = Charging Party Representative OR4 = Respondent Representative)

5.

2.  Please identify your title or role.

 

Attorney

Company HR representative

Company Labor Relations representative

Company line management or employee supervisor

Company management a level or more above that of the Charging Party supervisor

Union representative

Friend or family member

Consultant

Other, PLEASE SPECIFY: __________________________

 

 

(End of Page 5 )
 

If you are a Charging Party or Respondent, we request your opinion and not that of your representative or attorney. Feel free to consult with your representative or attorney but please do not allow someone else to complete this survey. 

6. What communications platform was used in your mediation?

Primarily/mainly by video call: Zoom including on cellphone and iPad, Google Meet, or another Video service

Primarily/mainly by audio call: hardline/landline phone, cell phone

Roughly 50/50 use of audio and video

 

7. Please check ALL the devices you used in today’s mediation.  PLEASE CHECK ALL THAT APPLY.

Cell phone

Tablet/iPad

Laptop/Desktop computer

Hardline/Landline phone

 

 

(End of Page 6 )
 

This Question is Conditionally Shown if: (7 (Count) > 1)

Cell phone is Conditionally Shown if: (7 (Cell phone) = Selected)
Tablet/iPad is Conditionally Shown if: (7 (Tablet/iPad) = Selected)
Laptop/Desktop computer is Conditionally Shown if: (7 (Laptop/Desktop computer) = Selected)
Hardline/Landline phone is Conditionally Shown if: (7 (Hardline/Landline phone) = Selected)

48. Please identify the device that you used to video conference with the mediator AND the other party.  CHECK ONLY ONE.

Cell phone

Tablet/iPad

Laptop/Desktop computer

Hardline/Landline phone

 

 

(End of Page 7 )
 

9. Please tell us how strongly you agree or disagree with this statement: I was able to communicate effectively with the other mediation participants with my device.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (9 = Strongly Disagree OR9 = Disagree)

10. Were there any major technical issues or equipment problems that prevented satisfactory communication during this mediation?  PLEASE CHECK ALL THAT APPLY.

My Internet connection was bad/unstable

Video kept freezing or cutting off

Audio kept lagging or cutting out

I was on my phone participating without Zoom and the call kept dropping

Difficulty operating Zoom on my cellphone

When using Zoom on my cellphone I could not use certain Zoom tools

When using Zoom on my tablet (iPad/Samsung Galaxy/Lenovo, etc.) I could not use certain Zoom tools

Problems with my or my representative’s device

Problems with other party’s or their representative’s device

Problems with the mediator’s device

Other, PLEASE SPECIFY: _____________________

 

 

(End of Page 8 )
 

8. I had prior experience (friends, family, school, teacher, etc.) using Zoom, Google Meet, Microsoft Teams, or other video conferencing tools before this mediation.

Yes

No

 

11. Please tell us if you engaged in any of the following activities while in joint session with the other side?  (Note, please do not include those activities during caucus with the mediator where the other party is not involved.)  PLEASE CHECK ALL THAT APPLY.

I contacted others (friends, colleagues, etc.) outside of the mediation to get help with mediation.

I used the internet to research a mediation issue or topic that I was not familiar with.

I contacted someone to help me reach a decision.

I was able to talk to other persons where I was located for their advice.

I worked on non-mediation related activities (“multitasking”).

No, I did not engage in other activities during the mediation session.

I was able to use the chat tool to directly and privately chat with the mediator while in a joint session (for example to immediately respond to what the other party was saying)

Other mediation related activities not listed above, PLEASE SPECIFY. ____________________

 

 

(End of Page 9 )
 

12. Please tell us if you agree or disagree with this statement:  The mediator was skilled in using the technology in this mediation.

Disagree

Neither Agree nor Disagree

Agree

 

13. Did the mediator test and/or preview the video platform prior to the actual mediation session commencing?

Yes

No

 

14. Please tell us if you agree or disagree with this statement:  The mediator made effective use of mediation break out rooms where we met separately without the other side so that we could speak privately about my case.

Disagree

Neither Agree nor Disagree

Agree

 

 

(End of Page 10 )
 

15. Please tell us how strongly you agree or disagree with this statement: Prior to my attendance at this mediation session today, I received an adequate explanation about mediation.  

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (15 = Agree OR15 = Strongly Agree)

16. What were your sources of information?  PLEASE CHECK ALL THAT APPLY.

Prior discussions with the mediator explained it to me prior to mediation.

EEOC charge filing portal

EEOC general website

Pamphlets

Friends and family who had previous mediation experience

Other, PLEASE SPECIFY: _______________

 

17. When did you first gain an understanding of the mediation process? 

I had experience prior to this EEOC case

During the charge filing process

Upon notification that a charge had been filed against us

From my attorney or representative

In communications with the EEOC in the days prior to the mediation

During the mediation session

When I was contacted by the mediator to discuss a mediation

 

 

(End of Page 11 )
 

Please tell us how strongly you agree or disagree with the following statements. Do you strongly disagree, disagree, neither agree nor disagree, agree, or strongly agree to each of the following statements?

18. After the mediator’s introduction at the mediation session, I understood how to use the mediation technology.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

 

(End of Page 12 )
 

Please tell us how strongly you agree or disagree with the following statements. Do you strongly disagree, disagree, neither agree nor disagree, agree, or strongly agree to each of the following statements?

19. The procedures used by the mediator in the mediation were fair to me.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (19 = Strongly Disagree OR19 = Disagree)

63. Please explain why you disagree or strongly disagree with the statement.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

20. I (or my representative) had a full opportunity to present my views during the mediation process.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

 

(End of Page 13 )
 

21. At the beginning of the mediation, I considered the mediator to be neutral.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

22. The mediator remained neutral during the session.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

 

(End of Page 14 )
 

47. The mediator helped the parties develop options for resolving the charge.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

23. Most of the options developed during the mediation session were realistic solutions to resolving the charge.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (23 = Strongly Disagree OR23 = Disagree)

65. What options should have been explored in resolving the charge?  Please specify.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

 

(End of Page 15 )
 

24. I am satisfied with the fairness of the mediation.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (24 = Strongly Disagree OR24 = Disagree)

62. Please explain why you disagree or strongly disagree with the statement.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

25. I am satisfied with the results of the mediation.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

Branch to: Survey Submitted (2 = I HAVE COMPLETED THIS QUESTIONNAIRE IN A PREVIOUS CHARGE BUT I CONSENT TO ANSWERING A FEW QUESTIONS THAT ARE SPECIFIC TO THIS CURRENT CHARGE AND25 ≤ Strongly Agree)
 

(End of Page 16 )
 

This Question is Conditionally Shown if: (4 = Charging Party)

66. Did you first attempt to resolve the issues in your charge with your employer prior to filing a charge with the EEOC?

Yes

No

 

This Question is Conditionally Shown if: (66 = Yes)

67. Who did you speak with?

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

This Question is Conditionally Shown if: (66 = Yes)

68. What specific actions did your employer take to resolve the issue?  

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

This Question is Conditionally Shown if: (66 = No)

69. Why did you not attempt to resolve the issue with your employer prior to filing a charge with the EEOC?  

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

 

(End of Page 17 )
 

26. Going into the mediation, did you know what you wanted to obtain from this mediation?

Yes

No

 

 

(End of Page 18 )
 

This Question is Conditionally Shown if: ((4 = Charging Party OR4 = Charging Party Representative) AND26 = Yes)

27.

 What did you expect to obtain from this mediation?

 

Monetary offer

Non-monetary offer

A combination of monetary and non-monetary offer

 

This Question is Conditionally Shown if: ((4 = Charging Party OR4 = Charging Party Representative) AND26 = Yes)

28. Did you obtain what you wanted going into the mediation?

I received nothing of what I wanted

I received some of what I wanted

I received much or a majority of what I wanted

I received everything I wanted

 

This Question is Conditionally Shown if: (27 = Monetary offer AND28 = I received nothing of what I wanted)

30. If you obtained nothing from this mediation and were asking for money, what was your monetary demand?

$5,000 or less

From $5,001 to $10,000

From $10,001 to $15,000

From $15,001 to $20,000

From $20,001 to $30,000

From $30,001 to $40,000

From $40,001 to $50,000

From $50,001 to $75,000

From $75,001 to $100,000

From $100,001 to $200,000

From $200,001 to $500,000

Over $500,000

 

This Question is Conditionally Shown if: (27 = Monetary offer AND28 = I received nothing of what I wanted)

31. You answered that you obtained nothing from this mediation, did you ask the employer for something that did not require employer payment of any money to you? 

Yes, I asked for something other than money from the employer

No, I did not seek any nonmonetary benefit

 

This Question is Conditionally Shown if: (27 = Monetary offer AND28 = I received nothing of what I wanted)

32. You answered that you obtained nothing from this mediation did the employer offer you any nonmonetary benefit?

Yes, a nonmonetary offer was made that I rejected in favor of not settling the charge

No

 

This Question is Conditionally Shown if: (27 = Non-monetary offer AND28 = I received nothing of what I wanted)

51. You answered that you obtained nothing from the mediation; did the employer offer you any money to settle the case?

Yes, a monetary offer was made

No, no money was offered

 

 

(End of Page 19 )
 

This Question is Conditionally Shown if: ((4 = Respondent OR4 = Respondent Representative) AND26 = Yes)

52. What did you expect to obtain from this mediation?

Resolve situation where we made a mistake

Resolve situation to avoid monetary costs with EEOC

Resolve situation to avoid further use of organizational time

Resolve situation as concerned about fairness of EEOC process

Resolve situation to continue this employment relationship

Other, PLEASE SPECIFY ____________________

 

This Question is Conditionally Shown if: ((4 = Respondent OR4 = Respondent Representative) AND26 = Yes)

56. Did you obtain what you wanted going into the mediation?

I received nothing of what I wanted

I received some of what I wanted

I received much or majority of what I wanted

I received everything I wanted

 

This Question is Conditionally Shown if: ((4 = Respondent OR4 = Respondent Representative) AND26 = Yes)

54. If this case was not resolved due to an inability to reach a monetary settlement, how far apart were the parties when the mediation ended?

$500 or less

From $501.00 - $1,000

From $1,001 to $3,000

From $3,001 to $5,000

From $5,001 to $10,000

From $10,001 to $20,000

From $20,001 to $50,000

From $50,001 to $100,000

Over $100,000

Not sure

Not applicable to this case

 

This Question is Conditionally Shown if: (56 = I received nothing of what I wanted)

55. You answered that you received nothing from this mediation, please identify any factors that were involved.  PLEASE CHECK ALL THAT APPLY.

Non-substantive process issues such as technology, lack of time, missing key party or person to continue or other factors that prevented us from settling the case.

Charging Party sought excessive amount of money

Charging Party made a non-monetary demand we could not meet

Mediator interfered with opportunity to settle

We were not prepared for what happened at mediation

Other, PLEASE SPECIFY ____________________

 

 

(End of Page 20 )
 

This Question is Conditionally Shown if: (4 = Charging Party)

33. Identify below any benefits you obtained from your mediation.  PLEASE CHECK ALL THAT APPLY.

I was able to address my concerns on an equal basis with those present.

I obtained money.

I obtained another needed work benefit.

I learned more about what happened to me in my workplace.

I was able to keep my job.

I obtained a commitment from my employer about how I will be treated at work.

I obtained a job reference.

I realized that I may not have a case.

My employer agreed not to contest my unemployment benefits or otherwise interfere with my receipt of unemployment.

Please describe other benefits you obtained that are not listed above. ____________________

 

This Question is Conditionally Shown if: (4 = Respondent)

34. Identify below any benefits you obtained from your mediation.  PLEASE CHECK ALL THAT APPLY.

We were able to explain why we believe we did not violate the law.

We were able to demonstrate our respect for the Charging Party and their perspective.

We were able to close this case and move on.

We were able to correct a misunderstanding.

We were able to improve our relationship with a continuing employee.

We were able to improve our relationship with a terminated employee.

We discovered and recognized improvements or actions that we will implement going forward.

We learned valuable information related to overall operation of the business.

We were able to demonstrate concern for our community stakeholders beyond this individual charge.

Please describe other benefits you obtained that are not listed above. ____________________

 

 

(End of Page 21 )
 

This Question is Conditionally Shown if: (4 = Respondent)

57. Has the economic impact from COVID-19 resulted in your organization coming to EEOC mediation with: 

Less monetary flexibility

More monetary flexibility

About the same

Not Applicable

 

This Question is Conditionally Shown if: (57 = Less monetary flexibility OR57 = More monetary flexibility)

58. Please elaborate. In what way do you have less/more monetary flexibility in mediation as a result of the economic impact of COVID-19.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

This Question is Conditionally Shown if: (4 = Respondent)

59. I find that in mediation by video my organization tends to offer:

More money than for in-person mediation

Less money than for in-person mediation

About the same

Not Applicable

 

 

(End of Page 22 )
 

This Question is Conditionally Shown if: (5 = Attorney)

60. Has the economic impact from COVID-19 resulted in your employer clients coming to EEOC mediation with:

Less monetary flexibility

More monetary flexibility

About the same

Not Applicable

 

 

(End of Page 23 )
 

35. Please identify the status of your mediation session. 

Completed and the case is resolved.

Completed and waiting for e-signature.

Mediation is ongoing.

Completed but the case is not resolved/impasse.

 

This Question is Conditionally Shown if: (35 = Mediation is ongoing. OR35 = Completed but the case is not resolved/impasse.)

36. If the mediation did not resolve the charge, why do you think that there was no resolution?  PLEASE CHECK ALL THAT APPLY.

The other party was not sincere in resolving the case.

The options developed were unacceptable to me.

We had to cut the mediation short because of an unplanned event.

I made a final offer and the other party did not accept.

No final offer was made by the other side.

There was an agreement, but it must be approved by a decision maker who was not at the mediation.

There was a non-monetary issue that we could not resolve.

The parties could not agree on the amount of money to resolve the case.

The issues of reinstatement to employment could not be resolved.

We needed more time.

No money was offered.

Another issue prevented resolution. PLEASE SPECIFY. ____________________

 

This Question is Conditionally Shown if: (35 = Mediation is ongoing. OR35 = Completed but the case is not resolved/impasse.)

37. I believe that progress was made toward resolution of this claim.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (35 = Mediation is ongoing. OR35 = Completed but the case is not resolved/impasse.)

38. Please check if you plan to follow-up with any of the following:

We will wait for completion of EEOC investigation and consider settlement later.

We have scheduled another EEOC mediation session or follow-up settlement discussion.

The parties will meet again, but outside of EEOC.

We will wait until a lawsuit is filed and consider settlement after all the evidence is seen during the lawsuit process.

Other, PLEASE SPECIFY. ____________________

 

 

(End of Page 24 )
 

39. Do you agree or disagree with this statement: If I had a future case before the EEOC, I would be willing to participate in the EEOC’s mediation program.

Yes

No

 

This Question is Conditionally Shown if: (39 = No)

64. Please tell us why you would be unwilling to participate in EEOC's mediation program in the future.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

40. How strongly do you agree or disagree with this statement: If I had a future case with the EEOC, I would prefer to participate in an EEOC mediation via VIDEO mediation even if in-person mediation is allowed.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (40 = Agree OR40 = Strongly Agree)

41. Please select your main reason(s) for preferring VIDEO mediation to in-person mediation.  PLEASE CHECK ALL THAT APPLY.

Travel challenge - I do not have ready means of convenient transportation.

Location challenge – I do not want to travel to the EEOC office location.

I would not want to be in the same location as the other party.

I prefer to be online due to the issue being mediated.

Allows for others to attend mediation or be available if needed who would not otherwise may not be able to do so.

Cost considerations.

Current job obligations.

Other, PLEASE SPECIFY. ____________________

 

 

(End of Page 25 )
 

This Question is Conditionally Shown if: (4 = Respondent)

42. How strongly do you agree or disagree with this statement: The use of VIDEO mediation makes it more attractive for my organization to participate in the EEOC mediation program.

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

 

This Question is Conditionally Shown if: (42 = Strongly Disagree OR42 = Disagree)

43. Please state your main reason(s) for preferring in-person mediation to VIDEO mediation. PLEASE CHECK ALL THAT APPLY.

I want to be in the same location as the other party.

I want to speak to or look the other party in the eye.

I hope to resolve the charge and “shake hands” in a positive in-person process.

The in-person mediation is more formal.

Others are more focused in an in-person mediation.

I am more focused in an in-person mediation.

I want to be able to see what the mediator is doing in person.

Other, PLEASE SPECIFY. ____________________

 

 

(End of Page 26 )
 

45. Please explain in detail how you believe EEOC’s mediation process can be improved.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

 

If you have any questions or concerns about the survey, please feel free to email the Research Team at epmcdermott@salisbury.edu 

 

THANK YOU! 

 

If you have any adverse effects or concerns about the research, please contact the primary investigator Dr. McDermott (epmcdermott@salisbury.edu) or the Office of Graduate Studies and Research at Salisbury University at 410-548-3549 or toll free 1-888-543-0148.

 

You can also contact the EEOC at OEDA@eeoc.gov or call 202-921-2928.

 

 

(End of Page 27 )
 

 

 

APPENDIX B – DATA TABLES

Table 1.  Survey Participation Rate

*  “Repeat participants”: participants (mostly party representatives) who have completed the survey from a previous mediation/case and agreed to complete a shorter version of the survey pertaining to the current case.

 

Table 2.  Survey Participation, by Party

 

Table 3.  Involvement of Insurance Company

Question:  Is an insurance company involved in this case?

 

Table 4.  Presence of Insurance Adjuster

Question:  Was an insurance adjuster present during or at any time in the mediation?

 

Table 5a.  Specific Role of Charging Party and Respondent Representatives

 

Table 6.  Communication Platform

Question:  What communication platform was used in your mediation?

 

Table 7a.  Devices Used – Number of Devices Used during Mediation

Question:  Please check ALL the devices you used in today’s mediation. (Cell phone, Tablet/IPad, Laptop/Desktop, Landline)  

 

Table 7b.  Devices Used during Mediation

Question:  Please check ALL the devices you used in today’s mediation. (Cell phone, Tablet/IPad, Laptop/Desktop, Landline)  

 

Table 7c.  Device Used to Video Conference with Mediator and Other Party

Question:  Please identify the device that you used to video conference with the mediator and the other party  

 

Table 8:  Degree of Agreement to the Statement: “I was able to communicate effectively with the other mediation participants with my device.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 9.  Technical Issues or Equipment Problems that Prevented Satisfactory Communication During Mediation

Question:  Were there any major technical issues or equipment problems that prevented satisfactory communication during the mediation?

 

Table 10.  Prior Experience with Video Conferencing

Question:  I had prior experience (friends, family, school, teacher, etc.) using Zoom, Google Meet, Microsoft Teams, or other video conferencing tools before this mediation.

 

Table 11a.  Other Activities Engaged in While in Joint Session with the Other Party

Question:  Please tell us if you engaged in any of the following activities while in joint session with the other side?  Please do not include those activities during caucus.

 

Table 11b.  Verbatim Responses to the Question on Other Activities Engaged in While in Joint Session with the Other Party

Question:  Please tell us if you engaged in any of the following activities while in joint session with the other side?  Please do not include those activities during caucus.

 

Table 11b.  Verbatim Responses to the Question on Other Activities Engaged in While in Joint Session with the Other Party - continued

 

Table 12.  Agreement/Disagreement to the Statement: “The mediator was skilled in using the technology in this mediation.”

 

Table 13.  Did Mediator Test or Preview the Video Platform Prior to Actual Mediation?

Question:  Did the mediator test and/or preview the video platform prior to the actual mediation?

 

Table 14.  Agreement/Disagreement to the Statement: “The mediator made effective use of mediation break out rooms where we met separately without the other side so that we could speak privately about my case.”

 

Table 15a.  Degree of Agreement to the Statement: “Prior to my attendance in this mediation session today, I received an adequate explanation about mediation.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 15b.  Sources of Information Among Participants Who Received Adequate Explanation about Mediation

Question:  If you chose “Agree” or “Strongly Agree” that you received adequate explanation about mediation:  What were your sources of information?

 

Table 15c.  Sources of Information Among Participants Who Received Adequate Explanation about Mediation – Detailed Tabulation by Type of Participant

 

Table 16.  When Participants First Gained an Understanding of the Mediation Process

Question:  When did you first gain an understanding of the mediation process?

 

Table 17.  Degree of Agreement to the Statement: “After the mediator’s introduction at the mediation session, I understood how to use the mediation technology.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 18a.  Degree of Agreement to the Statement: “The procedures used by the mediator in the mediation were fair to me.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 18b.  Reasons Given Why Participants Strongly Disagreed or Disagreed to the Statement: “The procedures used by the mediator in the mediation were fair to me.”

 

Table 19.  Degree of Agreement to the Statement: “I (or my representative) had a full opportunity to present my views during the mediation process.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 20.  Degree of Agreement to the Statement: “At the beginning of the mediation, I considered the mediator to be neutral.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 21.  Degree of Agreement to the Statement: “The mediator remained neutral during the session.” 

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 22.  Degree of Agreement to the Statement: “The mediator helped the parties develop options for resolving the charge.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 23a.  Degree of Agreement to the Statement: “Most of the options developed during the mediation session were realistic solutions to resolving the charge.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 23b.  Participants’ Suggestions on Options to Resolve the Charge:  Participants who Strongly Disagreed/Disagreed to the Statement:  “Most of the options developed during the mediation session were realistic solutions to resolving the charge.”

Question:  What options should have been explored in resolving the charge?

 

Table 24a.  Degree of Agreement to the Statement: “I am satisfied with the fairness of the mediation.” 

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 24a.  Reasons Given for Disagreeing with the Statement: “I am satisfied with the fairness of the mediation.”

Question:  Please explain why you disagree or strongly disagree with the statement: “I am satisfied with the fairness of the mediation.”

 

Table 25.  Degree of Agreement to the Statement: “I am satisfied with the results of the mediation.”

* Based on the Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

 

Table 26a.  Attempt to Resolve the Issue with Employer Prior to Filing a Charge

Question:  For Charging Party:  Did you first attempt to resolve the issues in your charge with your employer prior to filing a charge with the EEOC?

 

Table 26b.  Attempt to Resolve the Issue with Employer Prior to Filing a Charge – Persons Contacted

Question:  For Charging Parties who attempted to resolve the issue prior to filing a charge with the EEOC:  Who did you speak with?

 

Table 26c.  Attempt to Resolve the Issue with Employer Prior to Filing a Charge – Actions Taken by the Employer

Question:  For Charging Parties who attempted to resolve the issue prior to filing a charge with the EEOC:  What specific actions did your employer take to resolve the issue?

 

Table 26d.  Reasons for Not Attempting to Resolve the Issue with Employer Prior to Filing a Charge

Question:  For Charging Parties who did not attempt to resolve the issue prior to filing a charge with the EEOC:  Why did you not attempt to resolve the issue with your employer prior to filing a charge with the EEOC?

 

Table 27.  Did Participants Know What They Wanted Going into the Mediation?

Question: Going into the mediation, did you know what you wanted to obtain from this mediation?

 

Table 28a.  Participants’ Expectations of Mediation Outcome – Charging Party and Party Representative

Question: What did you expect to obtain from this mediation?

 

Table 28b.  Participants’ Expectations Compared to Mediation Outcome – Charging Party and Party Representative

Question: Did you obtain what you wanted going into the mediation?

 

Table 28c.  Monetary Demand – Charging Party and Party Representative

Question: If you obtained nothing from this mediation and were asking for money, what was your monetary demand?

 

Table 28d.  Request for Non-monetary Benefit from Employer – Charging Party and Party Representative

Question: You answered that you obtained nothing from this mediation did you ask the employer for something that did not require employer payment of money to you? 

 

Table 28e.  Employer’s Offer of Non-monetary Benefit – Charging Party and Party Representative

Question: You answered that you obtained nothing from this mediation did the employer offer you any nonmonetary benefit?

 

Table 28f.  Employer’s Offer of Monetary Benefit – Charging Party and Party Representative

Question: You answered that you obtained nothing from this mediation did the employer offer you any money to settle the case?

 

Table 29a.  Participants’ Expectations of Mediation Outcome – Respondent and Party Representative

Question: What did you expect to obtain from this mediation?

 

Table 29b.  Participants’ Expectations Compared to Mediation Outcome – Respondent and Party Representative

Question: Did you obtain what you wanted going into the mediation?

 

Table 29c.  Monetary Demand Difference – Respondent and Party Representative

Question: If this case was not resolved due to an inability to reach a monetary settlement, how far apart were the parties when the mediation ended?

 

Table 29d.  Factors that Prevented Party from Receiving Part or All of What was Expected – Respondent and Party Representative

Question: You answered that you obtained nothing from this mediation, please identify any factors that were involved.

 

Table 30a.  Benefits Obtained from Mediation – Charging Party

Question: Identify below any benefits you obtained from your mediation

 

Table 30b.  Benefits Obtained from Mediation – Respondent

Question: Identify below any benefits you obtained from your mediation

 

Table 31a.  COVID-19’s Economic Impact on Respondents’ Monetary Offer Going into Mediation

Question: Has the economic impact from COVID-19 resulted in your organization coming to EEOC mediation with:

  

Table 31b.  COVID-19’s Economic Impact on Respondents’ Monetary Offer Going into Mediation – Verbatim Responses

Question: In what way do you have less monetary flexibility in mediation as a result of the economic impact of COVID-19?

 

Table 31c.  Video Mediation’s Economic Impact on Respondents’ Monetary Offer Going into Mediation, Compared to In-Person Mediation

Question: I find that in mediation by video my organization tends to offer [compared to in-person mediation]:

 

Table 32.  Attorneys’ Opinions on COVID-19’s Economic Impact on their Clients’ Monetary Offer Going into Mediation

Question: Has the economic impact from COVID-19 resulted in your [clients] coming to EEOC mediation with:

 

Table 33.  Case Status

Question: Please identify the status of your mediation session.

 

Table 34a.  Factors/Reasons Preventing Case Resolution (Ongoing Mediations or Completed Mediations but Cases are Unresolved/Impasse

Question: If the mediation did not resolve the charge, why do you think there was no resolution?

 

Table 34b.  Factors/Reasons Preventing Case Resolution (Ongoing Mediations or Completed Mediations but Cases are Unresolved/Impasse – Verbatim Responses

Question: If the mediation did not resolve the charge, why do you think there was no resolution?

 

Table 34c.  Degree of Agreement to the Statement: “I believe that progress was made toward resolution of this claim.” (Ongoing Mediations or Completed Mediations but Cases are Unresolved/Impasse)

 

Table 34d.  Follow-up Activities/Plans (Ongoing Mediations or Completed Mediations but Cases are Unresolved/Impasse

Question:  Please check if you plan to follow-up with any of the following:

 

Table 34e.  Follow-up Activities/Plans (Ongoing Mediations or Completed Mediations but Cases are Unresolved/Impasse – Verbatim Responses

Question:  Please check if you plan to follow-up with any of the following: Other, please specify.

 

Table 35a.  Willingness to Participate in EEOC Mediation Program

Question:  Do you agree or disagree with this statement:  If I had a future case before the EEOC, I would be willing to participate in the EOOC mediation program.

 

Table 35b.  Reasons for Participants’ Unwillingness to Participate in EEOC Mediation in the Future – Verbatim Responses

Question:  Please tell us why you would be unwilling to participate in EEOC’s mediation program in the future.

 

Table 36a.  Degree of Agreement to the Statement: “If I had a future case with the EEOC, I would prefer to participate in an EEOC mediation via video mediation even if in-person mediation is allowed.”

 

Table 36b.  Reasons for Preferring Video Mediation to In-Person Mediation

Question: Please select your main reason(s) for preferring video mediation to in-person mediation.

 

Table 36c.  Reasons for Preferring Video Mediation to In-Person Mediation – Reasons Given by Charging Parties

Question: Please select your main reason(s) for preferring video mediation to in-person mediation: Other, please specify.

 

Table 36d.  Reasons for Preferring Video Mediation to In-Person Mediation – Reasons Given by Charging Party Representatives

Question: Please select your main reason(s) for preferring video mediation to in-person mediation: Other, please specify.

 

Table 36e.  Reasons for Preferring Video Mediation to In-Person Mediation – Reasons Given by Respondents

Question: Please select your main reason(s) for preferring video mediation to in-person mediation: Other, please specify.

 

Table 36f.  Reasons for Preferring Video Mediation to In-Person Mediation – Reasons Given by Respondent Representatives

Question: Please select your main reason(s) for preferring video mediation to in-person mediation: Other, please specify.

 

Table 37a.  Degree of Agreement to the Statement: “The use of video mediation makes it more attractive for my organization to participate in the EEOC Mediation Program.” (Among Respondents Only)

 

 

Table 37b.  Reasons for Preferring In-Person Mediation to Video Mediation (Among Respondents Only)

Question:  Please state your reason(s) for preferring in-person mediation to video mediation.

 

Table 38.  Mediation Participants’ Suggestions

Question:  Please explain in detail how you believe EEOC’s mediation process can be improved.

 

 

APPENDIX C – THREE DATA POINT COMPARISION TABLES