The U.S. Equal Employment Opportunity Commission

Meeting of the U.S. Equal Employment Opportunity Commission
EEOC Mediation Program and the Workplace Benefits of Mediation
December 2, 2003

Remarks of Paula Choate
Director, Field Coordination Programs/Office of Field Programs
U.S. Equal Employment Opportunity Commission

History/Overview of EEOC's Mediation Program

Good Morning, Chair Dominguez, Vice Chair Earp, Commissioners Miller, Silverman, and Ishimaru, distinguished guests, members of the audience and our field ADR Coordinators. I am pleased to be here today on behalf of the Office of Field Programs to provide a brief overview and history of EEOC's Mediation Program and introduce our first guest speaker.

My name is Polly Choate and I am the Director of Field Coordination Programs, in the Office of Field Programs. My shop is responsible for development and coordination of EEOC's private sector Mediation Program which is implemented through our 23 Districts and the Washington Field Office.

EEOC's mediation program began in 1991 with pilots in four field offices (Philadelphia, New Orleans, Houston, and the Washington Field Office). By 1997, pilots were established in all District offices. Meanwhile, based on the pilots' initial success and the 1994 recommendations of its own ADR Task Force, the Commission concluded that mediation was a viable alternative to traditional investigatory methods used by EEOC to resolve charges of employment discrimination, and that an ADR program should be implemented. In 1995, EEOC adopted its policy statement on ADR reflecting the program's core principles —that any ADR program should be voluntary, neutral, confidential, and flexible to meet changing program and operational needs; that agreements reached through ADR be enforceable and that the program have training and evaluation components. Following development of the program's operational framework in 1998, and receipt of start-up funding in its FY 1999 appropriation, EEOC's ADR mediation program was fully implemented in April 1999. Consistent with our core principles, EEOC's program has a firewall which separates its mediation and enforcement programs. This means that no information disclosed in mediation is shared with staff conducting investigations or litigation, and vice versa.

Since its inception, EEOC's mediation program has enjoyed overwhelming success in resolving charges of employment discrimination. As the centerpiece of Chair Dominguez's Five Point Plan, these successes have grown as the program has been expanded and promoted. From 1999 through 2003, over 52,400 mediations have been held and more than 69%, or 35,100 charges have been successfully resolved. In 2003, mediated charges were resolved in an average of 85 days, compared to an average of 160 days in the investigative process. Since 1999, over $485 million in monetary benefits have been secured through mediation.

But monetary benefits do not tell the whole story. Through mediation, the parties can craft solutions which meet their own needs and interests. While traditional remedies may be explored, many mediations involve creative solutions which are developed by the parties with the assistance of the mediator. Looking at the years since the program began, our experience has been that, in 13% to 20% of cases, a non-monetary benefit is the only benefit that changes hands. Examples of non-monetary benefits include: a change in shift hours, a job transfer, outplacement assistance, expungement of records, training for managers or supervisors, or a change in days off as a religious accommodation. And, the benefits of mediation often go beyond the merits or resolution of a particular case. Through mediation, relationships can be preserved, workplace communications enhanced. In mediation's confidential setting, the employer may learn new information which will help improve the workplace.

EEOC's program uses a combination of internal mediators employed by EEOC and external contract mediators. Each District Office has an ADR unit, headed up by an ADR Coordinator, with a staff of mediators ranging from one to seven. Currently, we have 21 ADR Coordinators and 81 staff mediators on board. EEOC also has a contract mediation program, with funding of over $1.8 million in 2003 and a number of contracts ranging from 3 to over 30 in each office, and a national contract with the Federal Mediation and Conciliation Service. Field offices may also use pro bono, or volunteer, mediators. Together, these resources ensure availability of our mediation program in all geographical locations. All mediators are trained in both mediation and the laws enforced by EEOC. As neutrals, the mediators apply their knowledge and experience as facilitators to explore the underlying dispute and to achieve resolutions which are mutually satisfactory to both parties.

EEOC evaluates each charge to see if it is appropriate for mediation. Charges which EEOC has determined are without merit are not eligible for mediation. In most cases, EEOC offers mediation soon after the charge has been filed and prior to further investigation. However, the parties may request mediation at any stage of the charge process. In 2002, under the Five Point plan, EEOC expanded the kinds of charges which could be considered eligible for mediation. In appropriate cases, mediation may be offered in charges identified as having a likelihood of merit and charges at the conciliation stage, after a finding of discrimination had been issued. In 2003, mediations were conducted in over 1,200 charges which had been identified during the investigation as having possible merit and 850 charges, or 71% were resolved. In 2003, District Offices reported using mediation in 40 charges at the conciliation stage and more than one-half of these charges were resolved. It should be noted that 11 of the charges not resolved were a group of charges with the same employer. If these charges are taken out of the mix, then the success rate of mediation at the conciliation stage would have been 74%.

In 2002 and 2003, EEOC implemented several other special initiatives to further expand and promote the use of mediation and ADR. EEOC encouraged employers to enter into Universal Agreements to Mediate (UAMs) at the local, regional or national levels. These UAMs facilitate an employer's agreement to mediate and expedite the mediation process by providing identified points of contact for EEOC and the employer for scheduling the mediation. As of September 2003, there were over 400 UAMs with local employers and 16 UAMs with national or regional employers. As of today, the number of national UAMs has grown to 23. These include national UAMs with Albertsons, a large grocery store chain in the West, and Kimble Glass, a New Jersey-based producer of glass products, Cardinal Freight, a transportation company, Trim Masters, a manufacturer of auto trim products, and several Fortune 500 companies.

EEOC also implemented a pilot Referral Back Program. Under this pilot, with the charging party's consent, EEOC holds the further processing of a charge in abeyance and refers the charge for possible resolution under an employer's own internal ADR program which meets the criteria for the pilot. The pilot currently includes four Fortune 500 employers and one major city government employer, and we look forward to expanding the pilot in the future.

Since its beginnings, EEOC has looked toward its stakeholders for input and feedback to develop and improve its mediation program. Since 1999, EEOC has conducted a variety of outreach and training activities to educate the public, employers and persons protected by laws enforced by EEOC, about the mediation program. In 2003, there were 520 ADR outreach programs geared to the employer community. Several studies have been conducted by independent researchers to evaluate the program's effectiveness and to identify potential improvements.

The first study, conducted by Professor E. Patrick McDermott, who is with us today, and his colleagues, was based on confidential surveys of mediation participants, including employers, charging parties and their representatives. Their report, which issued in 2000, found that parties who participated in mediation were very satisfied with the process, and that 96% of employers and 91% of charging parties would use the mediation program again if offered. The survey showed that it did not matter if the parties were represented or not, what type of charge had been filed, or if a resolution was reached, the results were the same. The parties felt the mediation program was informed, fair and neutral, and their overall satisfaction with the mediation process remained consistently very high. A later study conducted by Southwest Texas University reached similar results. A second study by the McDermott group surveyed EEOC mediators and examined the dynamics of the mediation process. This study was used to develop advanced training for our mediators.

To us, it is clear that the parties like EEOC's mediation program. Despite these survey results, the overwhelming success of the program, and our efforts to expand and promote the program, the participation rate of employers who agree to use the mediation program has remained relatively constant. In 2002 and 2003, about 31% of employers offered mediation agreed to participate. To further evaluate the program, we asked Professor McDermott and his colleagues to survey employers who decline mediation concerning the reasons they say no and feedback on what EEOC could do differently to increase their participation. The surveys were conducted over a 2-month period during June and August 2003 in all of our field offices. We are very pleased to have received this third report from Professor McDermott and his colleagues, and we look forward to using the survey results and report recommendations to market the benefits of mediation and expand participation in the program.

It is my pleasure to introduce to you Professor E. Patrick McDermott. You have Professor McDermott's bio but let me mention just a few of his accomplishments. Professor McDermott is an Assistant Professor in Management/Legal Studies at the Franklin P. Perdue School of Business at Salisbury State University, where he also serves as the Director of Research and Evaluation at the Center for Conflict Resolution. He has worked as a management, labor and employment law attorney and has authored numerous journal articles and a book on the use of ADR to resolve workplace disputes. His educational background includes undergraduate and graduate degrees from Cornell University, law degrees from Rutgers-Newark and New York University, and a Ph. D. in Human Resources Management from George Washington University. Without further ado, I would like to introduce Professor E. Patrick McDermott.

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