IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 03-10296-DD ________________________ LAVITA CHALICE TURNER, Plaintiff-Appellant, v. SOUTHEAST-ATLANTIC BEVERAGE CORP., Defendant-Appellee, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. ___________________________________________________________ On Appeal from the United States District Court for the Southern District of Florida, Miami Division Civil No. 00-4100-CIV-MOORE ___________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ___________________________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 Tel (202) 663-4791 Fax (202) 663-7090 Turner v. Southeast-Atlantic Beverage Corp. C-1 of 2 No. 03-10296-DD CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Appellee U.S. Equal Employment Opportunity Commission (EEOC) submits this list, pursuant to 11th Cir. Rule 26.1, of trial judges, attorneys, and other persons and corporations known to have an interest in the outcome of this appeal: Coffman, Coleman, Andrews & Grogan, P.A., Attorneys for Appellee James Crown, Mediator for EEOC Lorraine C. Davis, Assistant General Counsel, EEOC Melissa A. Dearing, Esq., Attorney for Appellee SE-Atlantic Eric S. Dreiband, General Counsel, EEOC James S. Feltman, Trustee in Bankruptcy proceeding William C. Healy, Asst. U.S. Attorney David A. Howard, Esq., Attorney for Appellant Mary W. Jarrett, Attorney for Appellee James L. Lee, Deputy General Counsel, EEOC Jim Miller, Esq., Bankruptcy Trustee's Attorney Honorable K. Michael Moore, U.S.D.J., Southern Dist. of Florida Kathleen W. Oram, Attorney, EEOC Honorable John J. O'Sullivan, U.S. Magistrate Judge, U.S.D.C. Susan R. Oxford, Attorney, EEOC Turner v. Southeast-Atlantic Beverage Corp. C-2 of 2 No. 03-10296-DD Honorable Peter Palermo, Sr. U.S. Magistrate Judge, U.S.D.C. Thomas J. Schlageter, Asst. Legal Counsel, EEOC Southeast-Atlantic Beverage Corp., Appellee Lavita C. Turner, Appellant U.S. Equal Employment Opportunity Commission, Appellee Carolyn L. Wheeler, Acting Associate General Counsel, EEOC _____________________________ Susan R. Oxford STATEMENT REGARDING ORAL ARGUMENT Pursuant to 11th Cir. R. 28-1(c), Appellee U.S. Equal Employment Opportunity Commission ("Commission" or "EEOC") does not believe that oral argument is needed or would assist the Court in resolving the issues presented in this case. Consistent with F.R.A.P. Rule 34(a)(2)(C) and 11th Cir. R. 34-3(b), EEOC believes that the facts and legal arguments are adequately presented in the parties' briefs and record in this case and that this Court's decisional process will not be significantly aided by oral argument. TABLE OF CONTENTS page CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . C-1 STATEMENT REGARDING ORAL ARGUMENT TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1 A. Course of Proceedings and Dispositions Below . . . . 1 B. Statement of Facts . . . . . . . . . . . . . . . . . 2 C. Standard of Review . . . . . . . . . . . . . . . . . 4 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 6 I. Turner Has Not Raised Any Issues on Appeal with Respect to the District Court's Dismissal of EEOC as a Party to this Lawsuit . . . . . . . . . . . . . . . . . . 6 II. EEOC Mediation is Designed to be Voluntary and Enforceable . . . . . . . . . . . . . . . . . . . . 7 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 16 CERTIFICATE OF SERVICE APPENDIX Attachment A "History of EEOC Mediation Program" . . 1a Attachment B "Facts About Mediation" . . . . . . . . 2a Attachment C EEOC Alternative Dispute Resolution Policy Statement No. 915.002 (7/17/95) . 3a Attachment D "Questions and Answers About Mediation" 7a Attachment E Affidavit of Patrick Kokenge . . . . . . 10a Attachment E-1 Mediation Fact Sheet . . . . . . . . . . 14a Attachment E-2 Form cover letter about EEOC mediation program . . . . . . . . . . . . . . . . 15a Attachment E-3 Agreement to Mediate form . . . . . . . 16a Attachment E-4 Confidentiality Agreement form . . . . . 17a Attachment E-5 Agreement to Mediate signed by SE-Atlantic Beverage Corp. (Nov. 10, 1999) . . . . . . . . . . . . 18a Attachment E-6 Confidentiality Agreement signed by SE-Atlantic Beverage Corp. (Nov. 10, 1999) . . . . . . . . . . . . 19a Attachment E-7 Agreement to Mediate signed by Lavita C. Turner (Dec. 3, 1999) . . . . 20a Attachment E-8 Confidentiality Agreement signed by Lavita C. Turner (Dec. 3, 1999) . . . 21a TABLE OF CITATIONS CASES page * Chavis v. Clayton County Sch. Dist., 300 F.3d 1288 (11th Cir.), reh'g & reh'g en banc denied, __ F.3d __ (11th Cir. Oct. 7, 2002) . . . . . . . . . 7 Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503 (11th Cir. 1985) . . . . . . . . . . . . 12 EEOC v. Henry Beck Co., 729 F.2d 301 (4th Cir. 1984) . . . . . . . . . . . . . . . . . . 12, 16 EEOC v. Safeway Stores, 714 F.2d 567 (5th Cir. 1983) . . 13 * Sammie Bonner Const. Co. v. Western Star Trucks Sales, Inc., 330 F.3d 1308 (11th Cir. 2003) . . . . . 7 * Smith v. Casellas, 119 F.3d 33 (D.C.Cir.), cert. denied, 522 U.S. 958 (1997) . . . . . . . . . . 6 * Storey v. Rubin, 976 F. Supp. 1478 (N.D.Ga. 1997), aff'd without op., 144 F.3d 56 (11th Cir. 1998) . . . 7 STATUTES Civil Rights Act of 1991, Pub. L. 102-166, § 118 [42 U.S.C. 1981 note] . . . . . . . . . . . . . 12 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. . . . . . . . . . . . . . . 2 42 U.S.C. §2000e-5(b) . . . . . . . . . . . . . . . . . . 12 42 U.S.C. §2000e-5(f)(1) . . . . . . . . . . . . . . . . . 12 MISCELLANEOUS page EEOC Alternative Dispute Resolution Policy Statement, No. 915.002 (7/17/95), EEOC Compliance Manual [BNA] N:3055 . . . . . . . . . . . . . . . 9, 10, 11, 13 EEOC v. Creative Dimensions, Inc., Civ. No. 3:00-CV-0581 (N.D.Ind.)(filed 9/20/00) . . . . 13 EEOC v. Infotech Training Institute, Civ. No. 1:01-CV-02686 (D.D.C.)(filed 12/31/01) . . . . 13 EEOC v. The Imagine Group, Inc., Civ. No. 02-CV-10025 (S.D.N.Y.)(filed 12/19/02) . . . . 13 EEOC v. U.S. Alliance Management Corp. d/b/a U.S. Security, Civ. No. 02-CV-21573 (S.D.Fla., filed 5/24/02) . . . . . . . . . . . . . . . 13 "Facts About Mediation," www.eeog.gov . . . . . . . . 8, 9, 10 "History of EEOC Mediation Program," www.eeoc.gov . . 8, 9 "Questions and Answers About Mediation," www.eeoc.gov . . . . . . . . . . . . . . . 11, 13, 14, 15 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 03-10296-DD ________________________ LAVITA CHALICE TURNER, Plaintiff-Appellant, v. SOUTHEAST-ATLANTIC BEVERAGE CORP., Defendant-Appellee, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. ___________________________________________________________ On Appeal from the United States District Court for the Southern District of Florida, Miami Division Civil No. 00-4100-CIV-MOORE ___________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ___________________________________________________________ STATEMENT OF THE CASE A. Course of Proceedings and Dispositions Below This case arises out of a pro se complaint that plaintiff- appellant Lavita Chalice Turner filed in district court, R.1 (Cmplt); R.22 (Amended Cmplt), alleging, among other things, that her former employer, defendant-appellee Southeast Atlantic Beverage Corporation, Inc., ("SE-Atlantic Beverage") discriminated against her based on her race and retaliated against her for complaining of such discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. ("Title VII"). Turner's amended complaint also alleged that the U.S. Equal Employment Opportunity Commission ("Commission" or "EEOC") improperly handled the discrimination charge she filed with EEOC in 1999. R.22 at 18- 20. By order dated February 28, 2002, the district court dismissed those portions of plaintiff's complaint directed at EEOC. R.50. The matter now comes before this Court on Turner's appeal from the January 7, 2003, order of the district court granting summary judgment to SE-Atlantic Beverage. R.117. The district court granted summary judgment on the grounds that before filing this lawsuit, Turner knowingly and voluntarily entered into an enforceable agreement with SE-Atlantic Beverage to resolve her claims during a mediation session conducted by the Commission pursuant to EEOC's established mediation program. Id. at 1-3. B. Statement of Facts Turner filed a charge of employment discrimination against her former employer, SE-Atlantic Beverage, on November 1, 1999. R.109 (Magistrate's December 10, 2002, Report and Recommendation) at 1. Pursuant to standard EEOC procedure, EEOC explained its voluntary mediation program to Turner and SE-Atlantic Beverage and invited the parties to mediate Turner's charge. R.22 (Amended Cmplt) at 18; Affidavit of Patrick Kokenge at ¶¶ 2-5 (Attachment E). The parties were each sent a form letter enclosing EEOC's Mediation Fact Sheet along with a copy of EEOC's standard Agreement to Mediate and Confidentiality Agreement. The cover letter advised the parties to return the signed agreements if they chose to participate in voluntary mediation. Id. at ¶¶ 3, 5 & Attchmnt E-2. SE-Atlantic Beverage and Turner both signed and returned the forms (dated November 10 and December 3, 1999, respectively), id., and mediation was conducted on January 31, 2000. R.109 (Magistrate's 12/10/02 R&R) at 2. At the end of the one-day mediation session, the parties signed a settlement agreement indicating that Turner agreed to resolve all of her existing claims against SE-Atlantic Beverage as of that date in exchange for which SE-Atlantic Beverage would pay Turner $13,000; provide medical benefits covering her pregnancy, delivery and post-delivery medical care for herself and her baby until six weeks following delivery; and provide Turner with a favorable job reference. Id. at 2-3. An EEOC representative also signed the agreement. See Settlement Agreement at 2 (Appellant's Record Excerpts). Turner received the relief specified in the agreement. R.109 (Magistrate's 12/10/02 R&R) at 3 (citing Pl. Dep. at 207). Turner filed this lawsuit in October 2000 asserting, among other things, her original claims of race discrimination and retaliation against SE-Atlantic Beverage and alleging that EEOC mishandled her charge of employment discrimination during EEOC's administrative processes. R.1; R.22. The district court granted EEOC's motion to dismiss the allegations against EEOC for failure to state a claim. R.50. The district court thereafter granted summary judgment to SE-Atlantic Beverage Corp. on the ground that Turner had already resolved the same claims in the settlement agreement she signed at the end of the EEOC mediation session. R.117. C. Standard of Review EEOC adopts the standard of review set forth by the parties in Appellant Turner's Opening Brief, App.Brf at 7, and Appellee SE- Atlantic Beverage's Answer Brief, SEAtl.Brf at 18-19, for this Court's review of a district court's ruling on a motion for summary judgment. Turner has identified no other issue in her Notice of Appeal, R.119, or in her Statement of the Issue in her opening brief. App.Brf at 2. SUMMARY OF ARGUMENT Turner has appealed the district court's grant of summary judgment with respect to her claims against SE-Atlantic Beverage, asserting for various reasons that the agreement that she and SE- Atlantic Beverage's representative signed is not enforceable. Turner, who is now represented by counsel, has not alleged any error on the part of the district court in dismissing her claims against EEOC. The Commission respectfully submits that the district court properly dismissed EEOC as a party to this action for the reasons set forth in the district court's February 28, 2002, order, R.50. At any rate, having failed to challenge the propriety of that order in her opening brief filed with this Court, Turner has waived any claim of error with respect to the dismissal of EEOC as a party to this case. Turner does, however, criticize both the settlement agreement reached during EEOC mediation and the manner in which her mediation was conducted. The Commission's mediation program is based on a number of key principles, to which EEOC carefully adheres in its administration of this system of alternative dispute resolution. Two are of particular relevance to this proceeding. First, charging parties and employers are advised that participation in EEOC mediations is voluntary on the part of all parties and that it remains voluntary throughout the process. Second, parties must be able to enforce agreements reached during an EEOC mediation. To assist this Court in resolving the claims Turner raises in this appeal, the Commission offers, for background purposes, an explanation of its mediation program. ARGUMENT I. Turner Has Not Raised Any Issues on Appeal with Respect to the District Court's Dismissal of EEOC as a Party to this Lawsuit. In her opening brief, Turner identifies the issue on appeal as "[w]hether the district court erred in granting summary judgment in favor of appellee on the ground that appellant's claims were barred by a prior settlement agreement," App.Brf at 2, and identifies the "appellee" in question as "Southeast Atlantic Beverage Corp." Id. at 3. Thereafter throughout her opening brief, Turner argues why, in her view, the district court erred when it granted summary judgment to SE-Atlantic Beverage. See App.Brf at 8-20. Turner has not argued that the district court erred in dismissing EEOC as a defendant, and that decision is correct for the reasons set forth in the magistrate's Report and Recommendation, R.43, which the district court adopted in its entirety, R.50. See, e.g., Smith v. Casellas, 119 F.3d 33, 34 (D.C.Cir.) ("...Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC's alleged negligence or other malfeasance in processing an employment discrimination charge."), cert. denied, 522 U.S. 958 (1997); Storey v. Rubin, 976 F. Supp. 1478, 1483-84 (N.D. Ga. 1997) (no express or implied right of action against EEOC based on agency's handling of an administrative complaint of discrimination), aff'd without op., 144 F.3d 56 (11th Cir. 1998). In any event, any claim that the district court erred in dismissing EEOC from this lawsuit has now been waived based on Turner's failure to assert any such argument in her opening brief. Sammie Bonner Const. Co. v. Western Star Trucks Sales, Inc., 330 F.3d 1308, 1310 n.2 (11th Cir. 2003); Chavis v. Clayton County Sch. Dist., 300 F.3d 1288, 1291 n.4 (11th Cir.) ("issues not argued on appeal are deemed waived, and a passing reference in an appellate brief is insufficient to raise an issue")(citation omitted), reh'g & reh'g en banc denied, __ F.3d __ (11th Cir. Oct. 7, 2002). II. EEOC Mediation is Designed to be Voluntary and Enforceable. EEOC has been mediating discrimination claims filed by Charging Parties against employers for more than a decade, starting with a pilot program begun in 1991 involving four EEOC field offices. The Commission concluded that mediation was an effective way of addressing many of the charges the agency receives each year, and in 1995 the Commission adopted its Alternative Dispute Resolution policy setting forth the principles that would guide EEOC's agency-wide mediation program. By the end of fiscal year 1997, every EEOC district office had a mediation program in place utilizing a combination of internal EEOC staff who serve as mediators, external "contract mediators," and persons providing pro bono mediation services. See "History of EEOC Mediation Program" (2/11/99), www.eeog.gov (Attachment A). As EEOC's public website explains, "[m]ediation is a form of Alternative Dispute Resolution (ADR) that is offered by the [EEOC] as an alternative to the traditional investigative or litigation process." See "Facts About Mediation" (2/11/99), www.eeog.gov (Attachment B). It is an "an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution of a charge of discrimination." The mediator "does not resolve the charge or impose a decision on the parties," but helps the parties, themselves, "agree on a mutually acceptable resolution" in a confidential proceeding. Id. Moreover, mediation, where successful, is an efficient means of resolving an employment discrimination claim, since most mediations are completed in one session that usually lasts for between one and five hours. Id. If the mediation session is unsuccessful in resolving the claim, the charge returns to the administrative process and is investigated like any other charge. Id. To guide Commission staff in identifying appropriate cases for mediation and to guide EEOC's mediators (including staff, contract, and pro bono mediators) in conducting EEOC mediations, the Commission's 1995 ADR Policy incorporated several "core principles" which are still in effect today. "History of EEOC Mediation Program"; see EEOC's Alternative Dispute Resolution Policy Statement, No. 915.002 (7/17/95), EEOC Compliance Manual [BNA] N:3055 ("ADR Policy Statement") (Attachment C). The Commission's Policy Statement provides that, in order to further EEOC's mission, the Commission's mediation process must be fair to the participants. "Fairness," in turn, encompasses several distinct concepts, including voluntariness, neutrality, confidentiality, and enforceability. These core principles governed EEOC mediations when Turner mediated her employment discrimination claims in January 2000, and they continue to govern EEOC mediations today. First, EEOC-sponsored mediation is voluntary for the parties. As the Commission's Policy Statement indicates: [T]he parties must knowingly, willingly and voluntarily enter into an ADR proceeding. Likewise, the parties have the right to voluntarily opt out of a proceeding at any point prior to resolution for any reason, including the exercise of their right to file a lawsuit in federal district court. In no circumstances will a party be coerced into accepting the other party's offer to resolve a dispute. [Id. at 2.] Second, EEOC mediation relies on a neutral third party to facilitate resolution of the dispute. Id. As the Policy Statement notes, use of "a neutral or impartial third party, with no vested interest in the outcome of a dispute, allows the parties themselves to attempt to resolve their dispute." Use of a neutral facilitator helps "maintain the integrity and effectiveness of the ADR program." Id. To help maintain this neutrality, the parties to any EEOC-sponsored mediation are advised beforehand that "[t]he mediator(s) will not voluntarily testify on behalf of a party in any pending or future administrative or judicial proceeding." See Confidentiality Agreement at ¶ 4 (Kokenge Affidavit, Attachment E- 4). Third, in order to encourage candid participation by the parties, EEOC mediations are strictly confidential, see ADR Policy Statement at 3, and "[i]nformation disclosed during mediation will not be revealed to anyone, including other EEOC employees." See "Facts About Mediation" (2/11/99), supra. The parties are advised that the only matter the mediator reports to the Commission following an EEOC mediation is whether the charge was resolved in mediation and, if so, the amount of any benefits received by a charging party pursuant to a mediated settlement agreement. This information is compiled by the Commission only to provide aggregate data for EEOC's reporting obligations. See Agreement to Mediate (Kokenge Affidavit, Attachment E-3). Indeed, the confidentiality of EEOC's mediation process is so important that mediation sessions are not tape-recorded or transcribed, and EEOC advises the parties beforehand that any notes taken by the mediator during the mediation will be discarded after the mediation is concluded. The parties are also required to agree beforehand "not to subpoena the mediator(s) or compel the mediator(s) to produce any documents provided by a party in any pending or future administrative or judicial proceeding." See "Questions and Answers About Mediation" at 1, 2 (Attachment D), found at EEOC's public website at www.eeoc.gov; see also Agreement to Mediate (Kokenge Affidavit, Attachment E-3) & Confidentiality Agreement at ¶ 4 (Kokenge Affidavit, Attachment E-4); Kokenge Affidavit at ¶ 7 (discussing the Confidentiality Agreement signed by Turner and SE-Atlantic Beverage Corp.). Finally, EEOC's Policy Statement on Alternative Dispute Resolution provides that "[a]ny agreement reached during an ADR proceeding must be enforceable." ADR Policy Statement at 3. Enforceability of mediated settlement agreements is consistent with Congress's strong preference, in enacting Title VII, for informal resolution of employment discrimination claims. See 42 U.S.C. §2000e-5(b), (f)(1) (EEOC required, whenever it finds reasonable cause to believe discrimination occurred, to attempt to eliminate the unlawful practice "by informal methods of conference, conciliation, and persuasion"); see also Civil Rights Act of 1991, Pub. L. 102-166, § 118 [42 U.S.C. 1981 note](use of alternative means of dispute resolution, including mediation, "is encouraged to resolve disputes arising under [Title VII]"); cf. EEOC v. Henry Beck Co., 729 F.2d 301, 306 (4th Cir. 1984) ("EEOC's function as an efficient conciliator ... is central to Title VII's statutory scheme"). This Court has recognized that if non-judicial resolutions of employment discrimination claims are to have any meaning, they have to be enforceable in court. See Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1508-13 (11th Cir. 1985) (discussing importance of both EEOC's and the parties' respective abilities to seek judicial enforcement of conciliation agreements as well as other kinds of settlement agreements negotiated prior to an EEOC cause determination). Enforceability of settlement agreements reached by the parties in EEOC-sponsored mediation is, for similar reasons, critical in order to ensure that mediation remains an effective means of resolving EEOC charges and, thus, an attractive alternative to employers and charging parties. Cf. EEOC v. Safeway Stores, 714 F.2d 567, 573 (5th Cir. 1983) ("usefulness of conciliation agreements as vehicles for voluntary resolution of employment discrimination charges would be ‘significantly reduced' if the agreements were not enforceable [in federal court]"). Because enforcement of mediated settlement agreements is important to the success of EEOC's mediation program, the Commission reviews any allegations that an ADR settlement agreement has been breached to "determine whether it will utilize its authority and resources to seek enforcement of the agreement." ADR Policy Statement at 3; see also "Questions and Answers About Mediation," supra, at 2. In a number of instances, EEOC has instituted proceedings in court to enforce a settlement agreement reached during an EEOC-conducted mediation. See, e.g., EEOC v. U.S. Alliance Management Corp. d/b/a U.S. Security, Civ. No. 02-CV- 21573 (S.D.Fla., filed 5/24/02) (pending); EEOC v. The Imagine Group, Inc., Civ. No. 02-CV-10025 (S.D.N.Y., filed 12/19/02) (resolved by consent decree 3/26/03); EEOC v. Infotech Training Institute, Civ. No. 1:01-CV-02686 (D.D.C., filed 12/31/01) (resolved by settlement agreement 9/18/02); EEOC v. Creative Dimensions, Inc., Civ. No. 3:00-CV-0581 (N.D.Ind., filed 9/20/00) (resolved by consent decree 7/27/01). Not every discrimination charge filed with the Commission is eligible for mediation. See "Questions and Answers About Mediation" at 2. EEOC staff assess the mediation potential of each charge early in the administrative process, usually before an investigation begins. Id. at 1. Commission staff may determine that a particular charge is inappropriate for mediation based on the size and complexity of the case, the relationship of the parties, the relief sought by the charging party, or the fact that the charge appears to be without merit. Id. at 2. If EEOC staff determine a charge is appropriate for mediation, the Charging Party and the Respondent are given basic information about EEOC's mediation program and invited to mediate. Id. at 1; Kokenge Affidavit at ¶¶ 2-3; see also "Get the Facts Series: Mediation" (Kokenge Affidavit, Attachment E-1). If the Charging Party and the Respondent both agree to mediate the charge, they are asked to sign a Mediation Agreement (which explains the mediation program and reiterates, among other things, the voluntary nature of the process) and a Confidentiality Agreement (through which the parties agree to maintain confidentiality of information disclosed during mediation). See Kokenge Affidavit at ¶ 3. Because the process is "strictly voluntary," however, "[i]f either party declines to participate in mediation, the charge will be processed just like any other charge." See "Questions and Answers About Mediation" at 1. Likewise, if the parties agree to mediate the charge but are unable to reach a mutually-acceptable agreement during the mediation process, "the charge is returned to an [EEOC] investigative unit" and thereafter "processed just like any other [EEOC] charge." Id. at 2. EEOC mediations are informal proceedings. Parties are permitted to have an attorney or other representative accompany them to the mediation, but are not required to bring a representative. Id. Accordingly, it is EEOC's position that a mediation proceeding would not be "unfair," and a settlement agreement reached during mediation would not be unenforceable, on the grounds that a party chose as a representative an attorney who is licensed to practice law in a jurisdiction other than the one in which the mediation is being held. See App.Brf at 15, 18. In addition, the Agreement to Mediate that the parties sign before the Commission schedules mediation makes it clear that the mediator "will not function as the representative of either party" and states that "[e]ach party acknowledges being advised to seek independent legal review prior to signing any settlement agreement." See Agreement to Mediate (Kokenge Affidavit, Attachment E-3); see App.Brf at 18. For appropriate charges and where both parties are willing, EEOC's mediation program is an efficient means of resolving claims of employment discrimination quickly, without recourse to either a full EEOC investigation or adjudication in the courts. The comments of the Fourth Circuit in addressing a different and earlier form of pre-cause determination settlements holds true in this context, as well: By allowing more frequent settlements, [mediation] saves resources that might otherwise be consumed in litigation and furthers the statutory goal of voluntary compliance. In addition, it enhances the aim of rapidly resolving disputes by encouraging early resolution before the Commission is required to expend time in investigations and reasonable cause determinations. EEOC v. Henry Beck Co., 729 F.2d at 305. CONCLUSION EEOC's voluntary mediation program has been designed to offer willing parties an effective alternative to lengthy administrative investigations. Along with the important principles of voluntariness, neutrality and confidentiality, the enforceability of agreements reached during EEOC mediation is a critical element of EEOC's mediation process. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMM. 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 Dated: September 9, 2003 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in F.R.A.P. 32(a)(7)(B)(i). The brief is prepared in Courier New 12-point type and contains 3,164 words. Susan R. Oxford CERTIFICATE OF SERVICE I hereby certify that on this 9th day of September, 2003, I forwarded, for filing, an original and six copies of the within brief by regular mail (U.S.P.S.) to the Clerk of the Court for the U.S. Court of Appeals for the Eleventh Circuit and served two copies of this same brief on the counsel of record listed below by the same means, at the following addresses: Mary W. Jarrett, Esq. David A. Howard, Esq. Melissa A. Dearing, Esq. 111 NE 1st Street Coffman, Coleman, Andrews & Grogan Suite 903 800 West Monroe Street Miami FL 33132 P.O. Box 40089 Jacksonville, FL 32203 __________________________________ SUSAN R. OXFORD DATED: A P P E N D I X APPENDIX TABLE OF CONTENTS page Attachment A "History of EEOC Mediation Program" . . 1a Attachment B "Facts About Mediation" . . . . . . . . 2a Attachment C EEOC Alternative Dispute Resolution Policy Statement No. 915.002 (7/17/95) . 3a Attachment D "Questions and Answers About Mediation" 7a Attachment E Affidavit of Patrick Kokenge . . . . . . 10a Attachment E-1 Mediation Fact Sheet . . . . . . . . . . 14a Attachment E-2 Form cover letter about EEOC mediation program . . . . . . . . . . . . . . . . 15a Attachment E-3 Agreement to Mediate form . . . . . . . 16a Attachment E-4 Confidentiality Agreement form . . . . . 17a Attachment E-5 Agreement to Mediate signed by SE-Atlantic Beverage Corp. (Nov. 10, 1999) . . . . . . . . . . . . 18a Attachment E-6 Confidentiality Agreement signed by SE-Atlantic Beverage Corp. (Nov. 10, 1999) . . . . . . . . . . . . 19a Attachment E-7 Agreement to Mediate signed by Lavita C. Turner (Dec. 3, 1999) . . . . 20a Attachment E-8 Confidentiality Agreement signed by Lavita C. Turner (Dec. 3, 1999) . . . 21a