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Questions and Answers - 2020 ADR Pilot

When is the Pilot in effect?

The Pilot applies to all charges filed between July 6, 2020 and January 6, 2021.

Under the Pilot, are all charges eligible for mediation?

Generally, yes.  Under the Pilot, all charges are, with narrow exception, eligible for mediation.  As was the case before the Pilot, charges that the EEOC has determined to be without merit, as well as Commissioner and Directed charges, are not eligible for mediation.  In addition, if the EEOC determines that a party’s interest would not be well-served by mediation, EEOC Senior management officials may exempt a charge otherwise eligible for mediation.  

At what point in the administrative process is mediation available to the parties? 

Although mediation is usually requested early in the administrative process, under the Pilot, parties to a charge may request mediation at any point in the administrative process, including during investigation of the charge and after the EEOC has issued a determination that discrimination occurred.  However, after the EEOC has issued a cause determination, mediation will be made available only if both the District Director and Regional Attorney agree that mediation is appropriate.

If the parties engage in mediation and are unable to resolve the charge, can they try again later in the administrative process?

Generally, no, although there may be specific circumstances when the EEOC will allow a second mediation session to occur.  Regardless, resolving the charge through settlement, or conciliation in the case of a cause finding, always remains available to the parties.

Is mediation required?

Mediation has always been, and continues to be under the Pilot, a voluntary process.  Only if both parties to the charge agree to mediate, will a mediation session be held. 

Who serves as the Mediator?

The Mediator may be an EEOC employee of the ADR Unit or an individual with whom the EEOC has contracted. 

If I request mediation while the charge is being investigated, what role does the Investigator play in the mediation? 

It depends. An Investigator may or may not participate in the mediation, depending on the Commission’s discretion and the parties’ preferences.

 If I request mediation after the EEOC has notified the parties that it believes discrimination did, in fact, occur, what role does the Investigator play in the mediation?

After the EEOC has issued a Letter of Determination concluding that there is cause to believe discrimination occurred, the Investigator, or other assigned EEOC representative, will participate in the mediation and represent the EEOC’s interest in remedying discrimination.  In this case, the Mediator serves to facilitate agreement among the parties. 

Can information revealed during a mediation session be used during an investigation if the charge is not resolved during mediation session?

It depends.  If the mediation takes place with no EEOC representative (e.g., EEOC Investigator or attorney) present during the mediation, then the answer is “no.”  Before engaging in mediation under these circumstances, the parties acknowledge that any evidence discussed during the mediation is confidential.  However, if the mediation takes place and an EEOC representative does participate in the mediation, then the parties must acknowledge and agree that the evidence discussed will not be confidential. 

As a Respondent, I have negotiated settlements with the Charging Party with the help of the assigned EEOC Investigator.  Is that still an option or I am now required to use a Mediator? 

If parties are interested in settling a charge while the charge is still under investigation, other informal means of settlement continue to be available, including settlement negotiated with the assistance of the Investigator.  The expanded eligibility for mediation does not replace, but rather supplements, currently available means of resolving a charge. 

In the past, I have been invited to engage in conciliation after the EEOC has issued a cause finding in a charge.  How does the Pilot affect the conciliation process?

Negotiating a conciliation with the Investigator without participating in an ADR session continues to be the default process at this stage.  However, specific requests for mediation will be considered.  If such a request is approved and an ADR session is held, the Mediator serves as facilitator for the Charging Party, Respondent, and EEOC.  Parties acknowledge that any new evidence discussed is confidential.