Equal Employment Opportunity Commission Mediators' Perception of Remote Mediation and Comparisons to In-Person Mediation

Download a PDF version of this document.

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

Dr. Ruth Obar, Ph.D.
Consultant

February 18, 2022

Preamble

We would like to thank those who made invaluable contributions so that our work was fun.  The Salisbury University Institutional Review Board (“IRB”) engaged in numerous hours of review of our surveys and methodology to ensure compliance with Human Subject research standards.

The Mediator and Participant studies required multi-level cooperation between the researchers, our EEOC contacts, and their interaction with the third party survey software provider Verint Systems (“Verint”). Tanya Stanfield, Management and Program Analyst in EEOC’s Office of Enterprise Data and Analytics (OEDA) office along with Lori Salter, Supervisor, XM Tech Team at Verint, served as our primary contacts for survey integrity and management; from the start they embraced the importance of our work and exhibited it on a daily basis.  Robin Esak, Lead IT Specialist in Analytics & Data Management at EEOC’s Office of Information Technology (“OIT”) provided and designed targeted EEOC data reports used for parallel studies; they were a key tool for Dr. Obar’s data analysis.  Alison Kilrain, Management and Program Analyst at OEDA provided oversight and quality control for the Verint integration of surveys and contact data; this was critical for a quality response rate for the online surveys.  We also thank Tyrone Willett, IT Specialist/Systems Manager OIT who developed the link for our e-mail address integration. When the survey rolled out, given our months of work on the survey design and methodology, we were biting our nails over survey response and related mechanical details.  Alison and Tyrone’s work was indispensable for our successful response rates. Chineyre Onye, Power BI Developer in OIT provided EEOC data reports for the participant surveys we were doing simultaneously with the mediator data; this allowed the team a broader understanding of our mediator measurements and the quality of our data across parties and mediators.  A special thanks to our volunteer interpreters. My Salisbury University colleague, Wendy Jin (Chinese interpreter), who first graced my presence in 2008 as my law student during my Fulbright year in Shanghai; EEOC Investigators Mercedes Casasola (Spanish), Blondel Vincent (Creole) and Robby Cedon (Creole). We thank each of you for this donated hard work.  Veronica Young, Management Support Specialist in OFP provided oversight of our two research contracts and was always a pleasure to deal with.

Chris Haffer, Chief Data Officer and Director of OEDA, combined vision and leadership skills in a pivotal role, providing survey insight and the necessary staffing for Verint data integration. We give special thanks to Chris for sharing his multi-decade expertise in survey development and data analysis.

The ADR Coordinators who provided survey development feedback and pre-test comments were integral to our success.  We know it was a bit unsettling to permit outside academics to ask questions that exposed every aspect of their program, particularly in the context of the effort they expended in successfully transitioning a mediation program online in a pandemic crisis where no one had a playbook.  We thank you for your trust. Your support for our work and your belief in your mediators’ abilities are memories we cherish.  The ADR Program Assistants also provided  support and are as appreciated. 

We thank AFGE Council 216 and its leadership for their pre-test review of our Mediator Survey and suggestions on the addition of a quality of work life question.  Your support and confidence in the abilities of the EEOC Staff Mediators are validated in our data. 

We thank the mediators and participants who took time from their hectic schedules to complete the surveys.  We saw the attention and seriousness with which they completed the survey and offered comments and sincerely appreciate their feedback.

A final thanks to National Program Director Steve Ichniowski who we first worked with in the 2000 participant evaluation survey.  Once again, Steve was our internal expert who provided invaluable insights to help maximize the quality of our methodology, survey development and data analysis.  One of the most challenging aspects of an evaluation is to gain the trust of the internal liaison to be able to ask any question in any format style to ensure that the evaluation is comprehensive and balanced.  This included measuring all areas which sometimes is uncomfortable to those in leadership and in the field who are worried what the data will say.  Steve provided us full freedom. Given the depth of our mediator and participant surveys, and all the program aspects measured, as the data rolled in, we sometimes felt as though we were waiting for Apollo 13 to successfully reenter the earth’s atmosphere. Because of this access and unfettered opportunity, we can state without reservation that we explored every program area our abilities permitted, looking for all program challenges. If we missed any measure deemed important to the reader, it was our error and not that of the EEOC.  Thank you Steve.  The results reported herein reflect your hard work and that of all of those cited above, and many others who we apologize to if we have not named.

TABLE OF CONTENTS

I. INTRODUCTION

II. SUMMARY OF KEY FINDINGS

III. PROGRAM AND EVALUATION HISTORY

IV. METHODOLOGY

V. THE RESULTS

A. EXPERIENCE ONLINE

B. MEDIATION PROCESS

1. MEDIATION DURATION

C. MEDIATOR TACTICS

1. NEW TACTICS IN ONLINE DISPUTE RESOLUTION (ODR)

a. INVITATION TACTICS

b. TECHNOLOGY TACTICS

i. DOCUMENT SHARING

ii. THE CAUCUS

iii. THE CHAT TOOL/CONCURRENT CAUCUSING

iv. OTHER TECHNOLOGY TOOLS/TACTICS

c. ADMINISTRATIVE TACTICS

i. LOCATION - PHYSICAL SEPARATION BENEFITS

ii. DOCUMENT EXCHANGE VIA CHAT & FTP

iii. ADDITIONAL ADMINISTRATIVE TACTICS – OPEN-ENDED RESPONSES

d. OTHER TACTICS

D. GROUND RULES

E. ONLINE FACTORS FACILITATING RESOLUTION

F. NOVEL FACTORS FACILITATING RESOLUTION: MEDIATOR VOICE BY VERBATIM RESPONSES

G. COMPARING ONLINE DISPUTE RESOLUTION (ODR) AND IN-PERSON MEDIATION (IPM)

1. COMPREHENSIVE AGREE OR DISAGREE QUESTIONS COMPARING VIDEO MEDIATION TO IN-PERSON

H. SETTLEMENT RATES

1. MEDIATOR ODR PERCEPTION

2. EEOC SETTLEMENT STATISTICS

I. SETTLEMENT VALUE AND QUALITY FOR THE CHARGING PARTY

1. SETTLEMENT VALUE BY MEDIATOR STATUS

2. SETTLEMENT QUALITY BY MEDIATOR STATUS

J. SETTLEMENT QUALITY FOR THE EMPLOYER

K. SETTLEMENT FAILURE DUE TO THE ONLINE FORMAT

L. ROLE OF THE INSURANCE ADJUSTER IN SETTLEMENT

M. THE “REPEAT PLAYER EFFECT” IN MEDIATION

N. PARTICIPANT FOCUS – IS THERE “ZOOM FATIGUE”?

1. CONNECTING FATIGUE TO THE LENGTH OF THE VIDEO MEDIATION

O. POWER IMBALANCE AND ONLINE MEDIATION

P. GENERALIZABILITY OF RESULTS - MEDIATOR EXPERIENCE IN OTHER FORUMS

Q. BASES NOT AMENABLE TO ONLINE MEDIATION

R. THE EEOC MEDIATOR OBSERVATIONS ON THEIR PERSONAL EXPERIENCE WITH ONLINE MEDIATION

VI. CONCLUSION

APPENDIX A – SURVEY

APPENDIX B – DATA TABLES

I. INTRODUCTION

This is a detailed survey of the mediation process and outcomes investigating mediator perceptions on the Equal Employment Opportunity Commission (“EEOC”) remote or online mediation program (“ODR”). The study uses benchmark mediator measures from a 2001 EEOC In-person Mediation (“IPM”) mediator survey.[1]   Also, EEOC settlement statistics were accessed to measure ODR vs. IPM settlement rates.  The 2021 mediator data establishes that ODR is an effective alternative to IPM, one that is arguably superior. It is clearly preferred by the mediators. 

The data reveals a new pattern of mediation.  Mediators report a process that is more flexible, uses enhanced communications tools, increases access to justice, continues to improve with increased use, and is embraced by the mediators.  Anecdotal opinions on disadvantages in ODR were tested and are not supported by the data.

II. SUMMARY OF KEY FINDINGS

Mediators report that:

• ODR at the EEOC is more flexible than IPM.  There is increased use of caucusing, increased sharing of important documents, a significant reduction of the time pressure element found in IPM,  scheduling flexibility including the ability to extend the time of a mediation and/or quickly reconvene a mediation to maintain settlement momentum, the added value of physical separation of the parties’ safe space, increased/varied communication lanes, the positive role played by insurance adjusters, and the real-time ability to invite other persons such as a key decision-maker into the mediation.   
• Mediators adopted new tactics with ODR that can be seen as a new type of mediation and not duplication of IPM online.  The results reveal increased caucusing intensity not possible in IPM and new patterns of mediation communication using concurrent communications. Mediators report immediate private feedback to the mediator, increased use of document sharing, flexible scheduling tactics beyond the parameters set by a physical location, “one shot reconvening” to make one more attempt at settlement, and the flexibility to invite necessary additional participants.
• A majority of mediators saw similar or better quality and value of settlements for both parties in ODR.
• There is little mediator observation of “Zoom fatigue”.  
• Mediators did not observe power imbalance issues between the parties.  Open-ended comments suggest ODR has a leveling effect with the Charging Party (“CP”) being more comfortable in the Zoom setting.
• There is little evidence of technology issues interfering with the overall quality and results of the mediation.  Where mediators report technological issues in ODR these are more likely to occur with the CP.
• The majority of mediators report they can read “body language” in ODR.  One quarter report an issue observing body language on Zoom.
• The overwhelming majority of mediators did not report that case settlement was negatively affected by ODR.  A minority of mediators observed a case or cases they believe did not settle due to the ODR format. 
• Mediators found that ODR was effective across all EEOC Charge bases (race, gender, age, etc.).
• As a mediator gained additional experience in ODR, the numerous measures used herein to evaluate the effectiveness of ODR vis-a-vis IPM increased in favor of ODR.
• EEOC staff mediators, who mediated the majority of the ODR cases in this survey, reported consistently higher measures on the various measures for ODR as compared to the EEOC pro bono and contract mediators with much lower case volumes.
• For most mediators, the EEOC’s transition to ODR was the first time the mediator used ODR. 
• Mediators did not observe many new “tactics” used by the parties in ODR.
• Twenty percent report higher settlement rates for their ODR cases with 9% reporting lower rates.  A majority (62%) report that their settlement rate for ODR as IPM.  Independent EEOC data confirms that ODR has a similar settlement rate (70.9%) as IPM (71.9%) .[2] 
• Most mediators did not report a change in any of their tactics used to break an impasse.
• Mediators reported that ODR was easier to use than IPM; their open-ended comments reported an increase in the quality of their work-life balance. There is some evidence that mediations are of shorter duration in ODR.
• The 2021 ODR survey measured the “repeat player effect” which hypothesizes that prior experience with counsel or a party is an advantage.  It is seen as a positive factor for resolution.
• The responses of the pro bono and contract mediators show they believe that their experience at EEOC ODR is similar to workplace mediation in other forums (American Arbitration Association, Financial Industry Regulatory Authority, courts, etc.) for this period of time suggesting this EEOC data is generalizable to other mediation forums. 
• Access to justice is enhanced by the EEOC ODR program by increased employer personnel and decision-maker participation, ease of participation of other key attendees, increased employee access, power balancing, removal of the CP’s fear of being in the same location as the Employer for some cases, and related benefits to both parties.  

III. PROGRAM AND EVALUATION HISTORY

The EEOC mediation program began with a pilot program in 1991.[3]  An evaluation of the pilot program was performed in 1994 (“McEwen pilot study”).[4]  After the program was introduced nationally, the EEOC commissioned  a comprehensive program evaluation (“the 2000 participant evaluation” ).[5]  In 2001 there was an evaluation of the mediator perceptions of the process, the dispute, and the parties (“the 2001 mediator study”).[6]  The mediator study data resulted in peer reviewed journal articles and other scholarship.[7] In 2003 there was an evaluation of the reasons employers declined to participate in EEOC mediation.[8] 

As a result of the pandemic, by mid-March 2020, the EEOC shifted all IPMs to remote platforms or phone mediations.  By September 2020, Zoom was adopted as the primary platform.   

IV. METHODOLOGY:

Using measures from the 2001 IPM survey, the 2021 ODR survey then added new measures to obtain the mediators’ vantage point on ODR and comparisons to IPM.  The one major difference is that the 2021 survey was taken online - not administered in person with written responses. Another 2021 survey advantage was that for certain closed ended questions providing a choice of responses, the online survey serially generated a random list of the possible responses;  this minimized bias in favor of selection of the first listed response and reduced any cognitive anchoring that may occur by a fixed order of responses.   Survey development occurred in the context of the rapid transition to video platform ODR at the EEOC and the existing practitioner debate over the effectiveness of ODR, including contemporary anecdotal professional discussions on this issue.[9]  The authors attended professional conferences, communicated with dispute resolution professionals, and read professional and practitioner journals and discussion posts to develop new ODR measurements to test the anecdotal comments and professional opinions offered during this sudden and massive transition to ODR in our nation’s legal system.[10] 

The survey was pretested by the EEOC’s 16 Supervisory ADR Coordinators from May 17, 2021 through May 20, 2021.  The labor organization representing bargaining unit staff mediators provided additional valuable feedback.[11]  The survey was then emailed by the EEOC to all EEOC roster mediators - EEOC staff, pro bono, and contract mediators. 

The mediator survey began July 2, 2021 and closed on September 24, 2021.  Mediators were initially advised by email on July 1st that the survey would be available for completion the next day.  The survey was administered by the EEOC using Verint survey management software (“Verint”) in collaboration with the researchers.  The solicitation automatically sent four initial and follow-up emails during the survey period (July 2^nd, July 8^th, August 4^th, and August 24^th) to remind and encourage those who had not responded to complete the survey.  The response rate data is set forth below.

Table 1.  Survey Response Statistics[12]

* Twenty-two surveys were excluded due to missing information or lack of experience in video mediation.

** Completion rate is defined in this study as the number of eligible surveys (139) divided by the number who consented to complete the survey (161 total mediators).

During the survey period, the EEOC staff mediators performed about 91 percent of the mediations, with 4 percent for pro bono and 5 percent for contract mediators.[13]  The breadth of mediator type is important because there is sufficient data from contract and pro bono mediators who mediate across other legal forums; this allows for the generalizability of the data.  Results are reported by these classifications. 

V. THE RESULTS

A. Experience Online

The survey measured mediator experience with online mediation prior to the pandemic.  Eighty-one percent (111 of the 137 mediators who responded) first used online mediation as a result of the pandemic; 19% (26) had prior experience.  The results were similar across staff, contract, and pro bono mediators.  For the 19% with prior experience, most of that small group used ODR within the five prior years; some had over a decade of ODR experience.  

Many of the EEOC mediators had extensive online experience at the time of the survey, with 62% having conducted over 60 online mediations in the 12 months prior to the survey.  In contrast, very few contract and pro bono mediators mediated with the same regularity.  A little less than half of the pro bono mediators (49%) conducted six or more online mediations; contract mediators reported similar results (44%).  The rest conducted from one to five mediations in the same period.

B. Mediation Process

1. Mediation Duration

The survey asked if mediation took less time online compared to in-person.  Forty percent agreed or strongly agreed that the online mediations took less time; 35% were neutral and 26% disagreed or strongly disagreed that online mediation took less time.[14]  On a Likert Scale from 1 to 5 (with “1” corresponding to Strongly Disagree and “5” to Strongly Agree), the aggregate results tip slightly to the “less time” observation at 3.18.  When the EEOC mediator responses are measured separately, the mean increases to 3.37.  This measure is refined further by separating EEOC staff mediators with 21 or more cases mediated.  This cutoff was selected to identify mediators with significant cases and thus a better foundation for comparison of ODR to IPM.  The average rating of the 43 staff mediators who had mediated at least 21 cases in the past 12 months prior to the survey period is slightly higher at 3.49.  This suggests that the more experienced staff mediators observe, on the average, a decrease in duration for ODR compared to IPM.[15]

The majority (63%) of mediations lasted between 3-5 hours (31% at 3 – 4 and 32% at 4 – 5 hours).  The 2001 IPM mediation study reported 36% of the mediations lasting 3-5 hours. Comparison of these similar, but not mirroring measures, suggests that for over two decades of measurement most mediations last between 3 to 5 hours.[16]

Table 2.  Length of Mediation Session

C. Mediator Tactics

1. New Tactics In ODR

New tactics are classified into Invitation, Technology, and Administrative subsections.  The survey questions were framed to emphasize that the mediator was being asked to identify new tactics in ODR.  Tables 3 to 6 report these results.

Table 3.  Summary Table – Additional Tactics Used in ODR

A review of the use of the classifications show that about half of the mediators did not select any of the “inviting” tactics.  A great majority reported use of the technology or administrative classification measures.  Only about 15% did not use any of the Technology or Administrative tactics listed in the survey; most of those were contract or pro bono mediators.

a. Invitation Tactics

Practitioners were asked about inviting persons who were not at the mediation.[17]  There was a list of various types of “invitees” to Zoom mediation.  The survey also sought to identify how the need for the invitee arose. The survey also probes whether a key decision maker was “demanded” as opposed to invited.  Table 4 sets forth the type of invitees and the context of the invitation:

Table 4.  Additional Tactics Used by Mediators – Invitation Tactics

 

The survey asked an open-ended question to identify other key invitees. Four percent identified “other” key persons who including an interpreter, a service animal, a newborn who was being breastfed, and a Board member. 

B. Technology Tactics

The survey sought to identify new technology related tactics and other tactics employed in ODR. 

Table 5.  Additional Tactics Used by Mediators – Technology Tactics

i. Document Sharing

Sixty-four percent invited a party to share a document.  All mediator classifications reported high use of this online tactic. 

The survey measured the increased use of document sharing in caucus.  It sought to identify whether more document sharing was occurring in caucus with ODR that in IPM.  Overall, 32% report more sharing of documents in caucus.  For the EEOC mediators this was much higher at 48%.  Only 18% of the contract mediators reported a higher amount of document sharing in caucus. 

ii. The Caucus

The data shows an acceleration in caucusing with ODR.  There is a speed and ease of movement from one party to the next found in ODR.[18] 

iii. The Chat Tool/Concurrent Caucusing

Thirty-seven percent of all mediators used the chat tool for general communications.  Fifty-eight percent of the EEOC mediators use this tool compared to 29% for contract mediators and 23% for pro bono. 

 “Concurrent caucusing” is defined in the survey question as using “chat, text, etc.” to communicate with one party during the joint session.  Practitioners identified this as a new aspect of ODR.  This additional communication tactic/tool can be seen as a developing area in a mediator’s style as it broadens direct mediator – party communication.  This communication could occur during a joint session or outside. It is also not limited to the video platform; that there may be multiple simultaneous digital channels of communication.  For example, one could text the mediator while in joint session creating a simultaneous dual channel of communication.[19]  Thirty-six percent of mediators engaged in this new type of mediator conduct.  The EEOC mediator rate is much higher at 44% compared to 32% for contract and 30% for pro bono mediators.  

iv. Other Technology Tools/Tactics

The survey measured the use of other platform tools/tactics.  Eleven percent used the additional video tools of clap, thumbs up, etc.  This was 23% for EEOC mediators and only 6% for contract mediators and 2% for pro bono. 

Four percent used neutral video clips and music to contribute to a positive setting. Six percent reported other technology tactics including caucus by phone, emails, whiteboarding, modeling settlement outcomes with the parties, and related technology tools. The EEOC mediators were more active with these tools/tactics.

c. Administrative Tactics

The survey also identified new tactics which labelled as “administrative”.  They are classified separately as they do not involve substantive mediation conduct but elements surrounding mediation time and place that can be considered tactical.

Table 6.  Additional Tactics Used by Mediators – Administrative Tactics

The survey measured the ability to use ODR to reconvene for “one more shot” at settlement.  This measure sought to measure an act that is almost always more difficult in the traditional fixed timeframe/location mediation format due to party and counsel scheduling, on-site issues, travel and other factors not found in ODR.  Overall, 62% of the mediators reported using this ODR flexibility with 75% of the staff mediators using this tactic.  Fifty-nine percent of the contract and 51% of the pro bono mediators report engaging in this extra settlement effort.

i. Location – Physical Separation Benefits

Sixty-one percent reported the benefit of not having parties in the same physical location.  For EEOC mediators this is a high percentage at 77%.  This safe space advantage may be greater for some types of mediation issues.  The data establishes increased access to justice for intimidated participants.

ii. Document Exchange Via Chat FTP

Twenty-one percent asked the parties to directly share documents with each other during the mediation with the file attachment tool in chat. 

iii. Additional Administrative Tactics – Open-ended Responses

Other tactics reported in our open-ended section included the ability to easily reschedule without the parties and mediator having incurred travel expenses, use of the Microsoft Teams platform, and the ability to use multiple breakout rooms to separately talk to counsel, including one-on-one discussions with counsel. 

d. Other Tactics

The final grouping sought any other tactics not classified in the Invitation, Technology, and Administrative tactics section. One additional important tactic was the ability to allow for longer breaks for parties to gather information. While this is reflected in the broader scheduling flexibility data reported above, it suggests that online mediation is a different process because of the real-time ability to gather information more easily during the session breaks.

D. Ground Rules

The survey asked if additional ground rules were used in online mediation.  Sixty-three percent reported no change, while 25% reported additional ground rules. Nine percent of the mediators do not use ground rules and 3% report use of less ground rules.  The mediators who used new ground rules in ODR identified a range of rules such as no cameras turned off, obligation to identify the persons in the room, privacy of the mediation, no recording, using the mute when not speaking, and remembering that body language may not be as evident so make sure to be verbal.

E. Online Factors Facilitating Resolution

The survey sought to identify aspects of online mediation that facilitate resolution.  Mediators identify flexibility in the process, including management of external time constraints (63%) and physical separation of the parties (37%).  The change in the time constraints limitations suggest a major qualitative advantage of ODR as compared to IPM.  The observation of less formality in online mediation is also reported as contributing to resolution (36%).

F. Novel Factors Facilitating Resolution: Mediator Voice by Verbatim Responses.[20]

The survey seeks to expand on the mediator voice by inclusion of additional insights from open-ended questions seeking the identification of novel “factors or conduct” that facilitate resolution.  These verbatim responses can be found in Appendix B (Table 29).  A number of these comments point out to ODR as fostering an environment conducive to mediation. Representative comments include  “comfortable environment”, “people are more relaxed participating from home/in their personal environments”,  and “complainants less nervous and more receptive to settling”.  This comfortable environment contributes to “lowering the tension” and allows charging parties, specially, “to be calmer”, “listen better”, and “ be more amenable to settle”.  One commented that being in a federal building or an office setting is intimidating to some charging parties.

A number of comments compared the stress level of travelling and dealing with parking issues and related issues that “increase the tension” in IPM that are not found in ODR.  One mediator mentioned that this not only applies to the parties but also to the mediators.

The flexibility afforded by ODR to multi-task was also mentioned: “they can feed their kids”, “walk the dog”, and attorneys can multi-task while the mediator is with the other party. The observation that time is not “wasted” is found in this mediator survey and the related separate participant survey.  

Employer focused comments note the financial savings that allow higher settlement offers including, “some attorneys will help parties to settle by reducing fees because they didn’t have to travel”.  Other Employer-related comments note advantages such as the flexibility of allowing multiple distant parties to participate, reducing power imbalance and the availability of resources for both parties.[21]

G. Comparing ODR and IPM

1. Comprehensive Agree or Disagree Questions Comparing Video Mediation to In-Person

Embedded midway in the survey is a section of 18 short Agree/Disagree questions comparing IPM to ODR. This is a change of survey pace that seeks to elicit detailed insight in a faster  flow.  The mediators were presented a list of statements about the video mediation; the statements were randomly generated so that each mediator received a set of statements ordered differently from the others.[22]  This section provides new data while also reinforcing, via different framing, other measurements.  The results are shown in Table 7 below. 

One key finding is that the element of time pressure, which is one of the key factors influencing traditional negotiation, is seen as being altered in online mediation by 67% of the mediators.  This can be seen as positive because it reduces a coercive tactic in negotiation that less sophisticated parties could fall prey to.  A second key finding is that 62% report that ODR protects “settlement momentum” to a greater extent than IPM.   Third, while many critics of ODR claim that ODR makes it impossible to read body language, 57% of the mediators report they can effectively read body language in ODR; one-quarter report they cannot. Fourth, 55% report the document sharing tool improves communication for sharing of documents that may impact settlement.  Fifth, over 50% report more efficient caucusing.  Sixth, almost half the mediators observe less emotional outbursts from participants.  Finally there is minimal evidence that ODR negatively impacts impasse resolution with only 17% reporting this occurs.

Table 7.  Comparing ODR and IPM: 

* Row totals sum to 100%.  The number of mediators responding range from 119 to 123 mediators.

Comparison within the three types of mediators (See Table 22b, Appendix B) reveal that the contract and pro bono mediators report lower ability to read body language. In comparison to the staff mediators with their greater volume of case experience, these other mediators also do not as strongly rate the additional ODR tools in this survey.  This suggests that the impact of case mediation experience on these observations. 

Deeper analysis on mediator attitudes to ODR based on case volume is relevant here.  (See Table 22c, Appendix B.)  A twenty case cutoff measure was applied with the theory that twenty or more cases provides a mediator sufficient experience to compare ODR to traditional mediation.  Mediators with ODR case experience of more than 20 mediations report a faster pace of mediation, a quicker first offer and counter-offer on the table, less time element pressure, better ability to maintain settlement momentum, better ability to read body language, and an overall effective use of the Zoom tools.  These measures show a clear trend that as one mediates more cases by ODR, the comparative advantages of ODR are reported to be greater. 

H. Settlement Rates

1. Mediator ODR Perception

The mediators were asked to compare their online mediation settlement rates with in-person rates.  Sixty-two percent reported no difference.  Twenty percent observed a higher settlement rate while 9% reported a lower settlement rate.  Nine percent were not sure of any difference.

Table 8.  Mediators’ Perception of Settlement Rates Using IPM and ODR

2. EEOC Settlement Statistics

The ODR settlement rate is about 70%.[23]  This includes data from the rapid transition to ODR.  For the IPM and ODR comparison measures, EEOC fiscal year (“FY”) data was used.  This permits the comparison of the ODR settlement rates to IPM shortly before the ODR transition.   

Table 9.  Settlement Statistics from the EEOC[24]

I. Settlement Value and Quality for the Charging Party

The survey sought the mediator’s perception of 1) the total value of the settlement that includes the monetary and non-monetary settlement values and 2) the overall quality of the settlement for the Charging Party. 

1. Settlement Value By Mediator Status

Responses by mediator status show a difference on the settlement value measure with 35% of the staff mediators reporting a higher settlement for the Charging Party compared to 9% for contract and 13% for pro bono.  Staff mediators handle a much higher volume cases and thus arguably represent a more experienced ODR cohort.  The difference could be a function of case experience, type of mediator, or other factors not measured.

Table 10.  Mediators’ Perception on the Value of Settlement for the Charging Party

2. Settlement Quality By Mediator Status

The survey sought to discern if the mediators reported different results when asked about the overall quality of the Charging Party outcome.  The logic of the separate quality question was that a dispute resolution can be measured by a broader concept of  “overall quality”.  This logic aligns with the idea of mutual problem solving and value creation.[25]  The results suggest some mediator discernment of the difference – but not much.  Almost 70% report similar outcomes though a larger proportion of staff mediators observed a higher overall value outcome compared to a lower overall quality value. 

Table 11.  Mediators’ Perceptions of the Quality of Settlement for the Charging Party

 

J. Settlement Quality for the Employer

A majority of mediators (63%) believed that the value of the settlement for the employer was similar to IPM.   Twenty-five percent saw the value as higher for the employer while only 3% reporting a lower value for the employer.  Nine percent were not sure.

Once again there is a difference in the staff mediator response with 43% observing that the Respondent obtains a higher value settlement compared to 26% for contract and 8% for pro bono.  

Table 12.  Mediators’ Perceptions of the Quality of Settlement for the Respondent

K. Settlement Failure Due to the Online Format

Mediators were asked  to identify what percent of the mediations that did not result in resolution were attributed by the mediators to the online format.  Seventy-one percent did not observe any cases where ODR interfered with resolution.  Seventeen percent of the mediators identified a continuum of 1% - 10% of their cases where ODR interfered with resolution.  Only fourteen mediators reported that more than 10% of their cases were negatively impacted by ODR.  

Table 13.  Settlement Failure as a Result of Using ODR

L. Role of the Insurance Adjuster in Settlement

The 2001 mediator survey did not consider the role of the Insurance Adjuster.  The current ODR survey provides this valuable additional measure. 

The survey sought to identify the role and impact of the insurance adjuster in facilitating resolution.  The adjuster could also have been invited by a party or counsel.  The highest observation, at 47%, was that the adjuster was flexible, open, straightforward.  Forty-three percent of the mediators identified the adjuster’s realistic conduct as another one of the top three elements facilitating resolution.  Forty percent placed this measure as the number one of the three forced ranked factors.  (See Table 30a at Appendix B).

The survey separately measured the mediator observations of the insurance adjuster’s direct interaction with the parties.  Sixty-seven percent reported that the adjuster was able to effectively communicate online. Only 4% reported that the communication was not effective with the remainder unable to judge the effectiveness of the adjuster in communicating with the parties.[26]

M. The “Repeat Player Effect” In Mediation

The survey sought to gather data on the “repeat player effect” theory in justice literature.[27]  This theory argues that one-shot litigants in traditional litigation or arbitration are at a disadvantage.  The mediators were asked if they had prior experience with one of the parties, including counsel.  If they answered yes, the survey sought to identify the party and to observe the influence of this repeat player situation by asking if it impacted the  mediation outcome. 

A majority of mediators report repeat player experience including with either the charging party attorneys or other representatives (68%), respondents (62%), and respondent attorneys or other representatives (67%).  Less than half of mediators (42%) have repeat experiences with insurance adjuster.

Mediators were asked for the percent of their mediations involving multiple previous experience with each of the participants above.  Their actual responses (in %) are tabulated below and grouped in increments of 20 percentage points.  Among those who report repeat player experiences with various mediation participants, more than half (54%) report mediating with the same employer in more than 80% of their cases; 41% report mediating with the same employer attorney or representative in more than 80% of their cases.  The frequency of mediating with the same charging party attorney or representative varies as shown in the table below.  Three out of four mediators report mediating with the same insurance adjuster in no more than 20% of their cases.

Table 14.  Repeat Player Incidence

The survey also sought to identify whether the prior experience impacted the outcome of the subsequent mediation.  The mediators reported that this prior experience with a party or their advocate had very strong impact 8% of the time, strong impact 20% of the time, and some impact 33% of the time.  Twenty six percent indicated no impact for the repeat player. 

Following up on impact, in an open-ended format the mediator was asked how the impact is manifested.  Overwhelmingly, the prior experience is reflected as developing trust and otherwise facilitating dispute resolution in the subsequent interactions. This element of bargaining credibility and relationship is one of the original repeat player theories in the list of  nine factors favoring the repeat player; it is also one of seven factors adverse to the interests of the “one-shotter”.[28]  The survey data establishes that this advantage flows equally to CPs with representation and to Employers.[29] 

N. Participant Focus – Is There “Zoom Fatigue”?

The survey sought to measure participant focus.  Zoom fatigue was mentioned in practitioner discussions at the onset of ODR, often framed as an important limitation of ODR. Sixty-three percent of the mediators reported no focus difference.  Contrary to the anticipated fatigue, twenty-five percent reported more focus.  Three percent reported less focus.  These results showing that 88% percent do not identify a focus issue are inconsistent with the anecdotal claims of Zoom fatigue.  Moreover, for the EEOC mediators who handled the majority of mediations during the survey, 43% reported greater focus, compared to 26% for contract and 8% for pro bono mediators. 

At a later point in the survey this focus issue was measured from a different frame.   The mediators were asked, in comparison to IPM, if the parties lost concentration sooner. Fifty-nine percent of the mediators did not observe such loss of concentration.  Twelve percent observed this and 28% were not sure.

Finally, a third, more directly framed question, was used to measure “fatigue”  The survey asked if the mediators generally observed “fatigue” and at what point in the mediation.  Sixty-two percent reported that fatigue set in after four hours of mediation. Twenty-one percent reported this occurring in the 3 – 4 hour point. Thirteen percent saw fatigue between 2 to 3 hours and four percent reported fatigue after one to two hours. 

Table 15.  Video Mediation Fatigue

1. Connecting Fatigue To The  Length Of Video Mediation 

The data shows that 62% of mediators observe video fatigue after four hours. Note from Table 2 above that 68% of video mediations were reported as lasting short of 5 hours. The mediation duration data from the 2001 mediator survey to the present ODR, a period of twenty years, suggests a general mediation fatigue/failure/success point at the 4-5 hour mark.

O. Power Imbalance and Online Mediation

The consideration of power balance is important for civil rights mediation evaluation.[30] Ninety-seven percent of the mediators did not find that the technology involved in online mediation created a power imbalance between the parties that they could not manage.

P. Generalizability of Results - Mediator Experience in Other Forums

The survey sought to measure if those mediators who reported that they mediated in other forums (American Arbitration Association, Federal Mediation and Conciliation Service, FINRA, etc.) had similar experience in these other mediation forums.  This was done to consider the generalizability of the EEOC data to these other forums.  This group reported the ODR experience is similar.

Q. EEOC Charge Bases Not Amenable to Online Mediation

Ninety-six percent of the mediators reported that all the types (a.k.a. basis) of EEOC charges were amenable to online mediation. 

R. The EEOC Mediator Observations On Their Personal Experience With Online Mediation

The survey asked mediators about their experience with online mediation.  Sixty-three percent reported that it was easier to conduct online mediations than IPMs.  Only six percent found it more difficult.  Thirty-one percent found it to be similar.

For the EEOC staff mediators, 73% found the ODR process was easier than in person.  Only 5% found it more difficult.

Mediator work-life balance was explored.  Comments included that ODR permitted more time for mediation as opposed to commuting and other time commitment.  Others noted the positive impact on family obligations, though some reported comingling. Overall, the comment reflect a positive experience. 

VII. CONCLUSION

From the perspectives of the overwhelming majority of mediators surveyed, the use of ODR is as, or more, effective than IPM. The data show a new pattern of mediation with a transformation in the intensity of caucusing and other communication; overall process flexibility that enhances settlement options including reconvening, session breaks, extension of the mediation where needed for settlement momentum; broader participation of key players/invitees for resolution; and power balancing resulting from the physical separation of the parties to create a safe space for mediation.  Access to justice increases. Settlements are similar according to EEOC data and often seen as of a higher quality by the mediators.   Zoom fatigue, the reading of body language,  and other anecdotal “negatives” reported as issues during the introduction of ODR are not supported by the data.  Mediators find ODR easy to use and that it has a positive impact on their work-life balance. 

The most surprising conclusion is that the survey sought various vantage points from which to report process flaws and/or ODR flaws and found no probative issues.  At most, the data shows that there exists some technology challenges – but they do not appear to impact the overall quality of the ODR session and seldom are seen as detrimental to the outcome.  

APPENDIX A

#2-2021 Mediator Survey - Copy [English (United States)]

EEOC MEDIATOR SURVEY

This is a confidential survey. Your responses go to independent third-party university researchers, Dr. E. Patrick McDermott and Dr. Ruth Obar at Salisbury University. You are being asked to complete this survey because of your EEOC in-person and video mediation experience. Your responses will be reported in an aggregated form so that no one will know your individual response to protect confidentiality.

Your assistance in completing this survey will allow us to fully analyze the EEOC's mediation process, and EEOC's conversion to video mediation. The research study will assist the EEOC to advance its understanding of how video mediation compares to in-person mediation and your unique insights into these two types of mediation processes. In addition, this information will allow the EEOC to determine the type of training programs and other support that can be provided to mediators and program participants.

Participation is voluntary. Whether you elect to participate or not will not affect your work with the EEOC. The survey will take approximately twenty minutes to complete. We will be asking you questions about your mediation experience. The questions ask for your insights into how video mediation and in-person mediation compare.

The benefits of this study include providing valuable information to the EEOC, the dispute resolution community, practitioners and academe. The researchers evaluated the EEOC mediation program and the mediator experience and insights in 2000-2001. Their research highlighted the mediators' contributions to the program and in establishing its national reputation for quality, fairness, neutrality and consistency. This information and data collected from this new survey will allow for the continuation of such recognition and ADR academic scholarship. We sincerely appreciate the time, focus, and effort in sharing your responses. The aggregated data will be one of the earliest studies completed on how the mediation profession has adapted during these challenging times and continues to make a difference in the lives of many.

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 move to the next question. Your answers will be submitted to a database at a third-party database organization, Verint, and Verint will then provide the confidential survey responses to the university researchers. This information will not be possessed by any EEOC personnel. Please complete the survey via computer and not phone as the layout and characters become distorted and impact your responses.

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

Thank you.

1. 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 DO NOT CONSENT TO PARTICIPATION IN THIS SURVEY

(End of Page 1 )
 

This Page is Conditionally Shown if: (1 = I DO NOT CONSENT TO PARTICIPATION IN THIS SURVEY)

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

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

Destination: I DO NOT CONSENT (Set in 2)
 

(End of Page 2 )
 

3. Identify your status

EEOC Staff

Contract Mediator

Pro Bono

The term “VIDEO MEDIATION” includes mediating using Zoom, Microsoft TEAMS, Google Meet, or any other video tool.

4. When was the first time you used Zoom, Microsoft TEAMS, GOOGLE Meet, or some other VIDEO platform tool to mediate in any forum?

Prior to the COVID-19 pandemic shutdown of March 2020

During the COVID-19 pandemic shutdown

This Question is Conditionally Shown if: (4 = Prior to the COVID-19 pandemic shutdown of March 2020)

5. Please type in the approximate year you first used Zoom, Microsoft TEAMS, GOOGLE meet or another VIDEO platform to mediate.

    ____________________

6. How many VIDEO mediations have you conducted at the EEOC in the past 12 months?

None

1 - 5

6 - 10

11 - 20

21 - 30

31 – 50

51 – 60

If more than 60, please type in your best estimate: ____________________

(End of Page 3 )
 

The following questions refer to your experience with EEOC video mediation (Zoom, Microsoft TEAMS, Google Meet).  When answering these questions, please consider your overall experience at the EEOC; do not lock in on your last EEOC mediation or those that may stand out more than others.

7. In comparison, my time in the VIDEO mediations at the EEOC usually take less time than compared to an IN-PERSON mediation. 

Strongly Disagree

Disagree

Neither Agree nor Disagree

Agree

Strongly Agree

8. On average, how long do your EEOC VIDEO mediations last? 

Less than 1 hour

At least 1 hour but less than 2 hours

At least 2 hours but less than 3 hours

At least 3 hours but less than 4 hours

At least 4 hours but less than 5 hours

At least 5 hours but less than 6 hours

At least 6 hours but less than 7 hours

At least 7 hours but less than 8 hours

(End of Page 4 )
 

Your perceptions of VIDEO mediation settlements are important for the researchers to better understand what you are experiencing in your VIDEO mediations.

9. I estimate that my settlement rates using VIDEO mediation platforms are:

HIGHER compared to in-person mediation

LOWER compared to in-person mediation

THE SAME as in-person mediation

NOT SURE

10. I estimate that the total value for the Charging Party of the settlement (monetary, non-monetary, etc.) in my mediations using VIDEO as compared to IN-PERSON are:

HIGHER – The Charging Party/plaintiff seems to do better in VIDEO mediation.

LOWER – The Charging Party/plaintiff seems to obtain less value in VIDEO as compared to IN-PERSON mediation.

SIMILAR

NOT SURE

11. I estimate that the overall quality of the settlement for the Charging Party in my mediations using VIDEO as compared to IN-PERSON are:

HIGHER – The Charging Party obtains a higher quality resolution in VIDEO mediation.

LOWER – The Charging Party obtains a lesser quality resolution VIDEO as compared to IN-PERSON mediation.

SIMILAR

NOT SURE

12. I estimate that the overall quality of the settlement for the Respondent in ALL my mediations using VIDEO as compared to IN-PERSON are:

HIGHER – The Respondent/defendant obtains a higher quality resolution in VIDEO mediation.

LOWER – The Respondent/defendant obtains a lesser quality resolution in VIDEO as compared to IN-PERSON mediation.

SIMILAR

NOT SURE

13. What percentage of the EEOC mediations conducted by you during the pandemic to now do you estimate were not resolved solely because the session was conducted remotely and not in-person.

    ____________________

(End of Page 5 )
 

14. Identify the tactics that you used for in-person EEOC mediations prior to the use of EEOC VIDEO mediations: CHECK ALL THAT APPLY.

Reflexive questioning

Reframing, paraphrasing, restating

“Reality checking”

Use of probing questions

Mediator’s proposal to break impasse

Evaluating strengths and weaknesses

Clarifying facts or areas of agreement

Providing knowledge of the law and court litigation process

Discussion of the EEOC investigation stage and access to courts

Discussion of ability to obtain or afford counsel at later stages of the process

Defusing negative emotions

Encouraging openness, honesty

Keeping parties focused

Stepping back and letting parties fashion the remedy

Presentation of data on EEOC charges or court disposition

Pre-mediation calls/communication to prepare

Power balancing

Written pre-mediation submissions

Helping parties see different vantage points

Leveraging time concerns

Leveraging limited opportunity to negotiate a settlement after today’s mediation

Other, PLEASE SPECIFY. ____________________

(End of Page 6 )
 

If you use additional tactics to help parties reach resolution in VIDEO mediation compared to IN-PERSON mediations, please identify such additional tactics that you now have introduced/employed in VIDEO mediation in either the joint session or in breakout room caucus.  CHECK ALL THAT APPLY. 

15. A. INVITING KEY PERSON/S TO JOIN THE SESSION. 

From the list below, please identify additional tactics that you have introduced/employed in VIDEO mediation to help parties reach resolution. CHECK ALL THAT APPLY

Inviting an outside party (witness, family, expert, trusted intermediary, etc.) to join the session as a result of information shared during planning of the session.

Inviting a key outside person who can add important facts to join the session as a result of information exchanged in the mediation session.

Inviting a key outside person who can add important perspective to join the session as a result of information exchanged in the mediation session.

Inviting a key outside person who is a decision maker as a result of information exchanged in the mediation session.

Inviting a key outside person who is needed for a party’s emotional or other support as a result of information exchanged in the mediation session.

Inviting an insurance company representative

Demanding a key decision maker who is not at the table to join

Other key person you have invited to video mediation. PLEASE SPECIFY. ____________________

(End of Page 7 )
 

16. B. TECHNOLOGY RELATED TACTICS. 

From the list below, please identify additional tactics that you now have introduced/employed in VIDEO mediation to help parties reach resolution CHECK ALL THAT APPLY.

Inviting a party to share a key document

More frequent use of the breakout room tool for caucusing/shuttling/attorney discussions, etc. than in-person shuttling

Concurrent caucusing (using a main session and concurrently communicating with each party during the main session with chat, text, etc.)

More use of a party's documents via the video share tool in the separate caucus/breakout room

More use of a party's documents via video sharing in joint session

Use of the "chat" tool for general communications

Use of the File Transfer chat tool to vet the settlement agreement language with parties

Using the video communication tools such as clap, thumbs up, etc.

Use of neutral audio-visual clip(s), music, etc. to improve the atmosphere of the session while other parties in private caucus

Other technology tactics you use. PLEASE SPECIFY. ____________________

(End of Page 8 )
 

17. C.  ADMINISTRATIVE FACTORS/TACTICS.

From the list below, please identify additional tactics that you now have introduced/employed in VIDEO mediation to help parties reach resolution.  CHECK ALL THAT APPLY.

Enhanced scheduling availability to meet parties' needs (no building hours or traffic issues etc. so can start early, end late, work later into a Friday afternoon, and other Zoom convenience)

More effective separation of the parties by Zoom breakout room tool compared to when physically sharing the mediation site

Inviting a party to send a document to the other party via the VIDEO chat feature

Willingness to extend the time of the session due to the convenience of VIDEO

Offering to quickly reconvene the mediation at another time for one more shot at a settlement if possible

Other administrative tactics you use: PLEASE SPECIFY. ____________________

(End of Page 9 )
 

18. OTHER TACTICS OR FACTORS.  Are there any other tactics you introduced in VIDEO mediation that were not asked about at the immediately preceding Sections A - C? PLEASE SPECIFY.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 10 )
 

19. Compared to in-person mediation, has the use of VIDEO mediation caused you to set additional ground rules?

Yes, I set additional ground rules compared to in-person mediation.

No, I set less ground rules compared to in-person mediation.

No, I set the same ground rules in video and in-person mediation.

I don’t set ground rules when mediating.

This Question is Conditionally Shown if: (19 = Yes, I set additional ground rules compared to in-person mediation.)

20. Please identify the additional ground rules you use for VIDEO mediation: 

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

21. In general, comparing in-person mediations to your mediations with VIDEO, how would you compare the level of participant focus?

The parties on VIDEO are more focused.

The parties on VIDEO are less focused.

I have not noticed a difference.

(End of Page 11 )
 

22. For your EEOC video mediations, please separately rate the video dispute resolution skills of the Charging Party and Respondent attorneys, and any Non-Legal Representatives who have appeared before you on a scale of 1 to 5 with:

1 = Minimal Skills
2 = Below Average Skills
3 = Average Skills
4 = Above Average Skills
5 = Excellent Skills
Check "N/A" if not applicable

1=Minimum; 5=Excellent

	1 = Minimal Skills	2 = Below Average Skills	3 = Average Skills	4 = Above Average Skills	5 = Excellent Skills	N/A
CHARGING PARTY'S ATTORNEY:
RESPONDENT'S ATTORNEY:
CHARGING PARTY'S NON-LEGAL REPRESENTATIVE:
RESPONDENT'S NON-LEGAL REPRESENTATIVE

(End of Page 12 )
 

23. I find that the Charging Party (not counsel) uses additional tactics in VIDEO mediation that I do not see at in-person mediation.  Please remember these are your aggregate opinions of mediation participants.

AGREE

DISAGREE

This Question is Conditionally Shown if: (23 = AGREE)

24.  

Please identify additional new tactics you are seeing from Charging Parties/plaintiffs in VIDEO mediation that you do not see at in-person mediation.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

25. I find that the Respondent (not counsel) uses additional new tactics in VIDEO mediation that I do not see at in person mediation.  Please remember these are your aggregate opinions of mediation participants.

AGREE

DISAGREE

This Question is Conditionally Shown if: (25 = AGREE)

26.  

Please identify additional new tactics you are seeing from Respondents in VIDEO mediation that you do not see at in-person mediation.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 13 )
 

46. Based on your general experiences with VIDEO mediation by Zoom at the EEOC, please indicate whether you “Agree” or “Disagree” with each of the following statements.

	Agree	Disagree	Neither agree or disagree
Mediation moves at a faster pace by VIDEO compared to in-person mediation.
The Opening offer is usually on the table faster compared to in-person mediation
The First Counter-offer is made quicker compared to in-person mediation.
The time element pressure at the end of the mediation on VIDEO is more flexible than the time pressure toward the end of an in-person mediation.
My tactics for managing impasse are different in VIDEO mediation than in-person.
It is more difficult to resolve party impasse on VIDEO than in-person.
VIDEO caucuses are more efficient with breakout rooms than when I used caucuses in person.
In a caucus the parties are more direct in video communication compared to in person.
The parties are more direct in VIDEO communication with the other party in joint session compared to in person.
Parties are more respectful to each other on VIDEO.
I see less emotional outbursts from participants when mediating with VIDEO.
VIDEO mediation reduces the time I would normally spend in an in-person mediation in preliminary relationship building between me and a party.
Attorneys are more efficient in VIDEO mediation compared to in-person mediation.
There is less back and forth with attorneys in VIDEO mediation.
Attorneys are more respectful in VIDEO mediation.
In VIDEO mediation settlement momentum is not lost because the parties or their attorneys leave the in-person mediation due to external reasons (parking, other appointments, travel issues, someone else has scheduled the room, etc.).
The VIDEO document “share” function improves communication of document content that may impact settlement.
I can effectively read body language and related cues in VIDEO mediation.

(End of Page 14 )
 

In those instances where EEOC VIDEO mediations were not resolved, please identify the top 3 most important barriers to resolution. 

27. GROUP A – VIDEO TECHNOLOGY/SETTING BARRIERS - Please choose the top 3 most important barriers to resolution from this list of video technology barriers that you find generally interfere with the resolution of your EEOC cases.  If another reason or reasons apply, use "Other".  PLEASE CHOOSE THREE FROM THIS LIST.

Technology Interference (internet connection, poor audio, etc.) 

The case needed an in-person mediation forum and not Zoom

Interference from other persons at the Charging Party site that were not mediation participants

Interference from other persons at the Respondent site that were not mediation participants

Limited VIDEO platform skills of a participant

Other, Please specify

(End of Page 15 )
 

28. GROUP B –CHARGING PARTY CONDUCT THAT WAS A BARRIER:Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential charging party conduct.  If another reason or reasons apply, use "Other".  PLEASE CHOOSE 3 FROM THE LIST.

Charging party (or their representative) used mediation to gather information (discovery, case related to another case, etc.)

Charging party’s (or their representative’s) “positional conduct” (unrealistic, unreasonable)

Charging party’s (or their representative’s) “negotiation conduct” (refused to discuss or explore options, refused to listen, did not show interest)

Charging party’s (or their representative’s) “personal conduct” (emotional, angry, disrespectful)

Charging party’s (or their representative’s) lack of preparation

Charging party did not know what they wanted

Charging party did not want to invest the time

Charging party’s representative had limited or no authority to settle

Charging party’s representative did not have the time

Charging party needed legal representation

Other, Please Specify ____________________

(End of Page 16 )
 

29. GROUP C – RESPONDENT CONDUCT BARRIERS: Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential respondent conduct.  If another reason or reasons apply use “Other”.  PLEASE CHOOSE 3 FROM THE LIST.

Respondent (or their representative) used mediation to gather information (discovery, case related to another case, etc.)

Respondent’s (or their representative’s) “positional conduct” (unrealistic, unreasonable)

Respondent’s (or their representative’s) “negotiation conduct” (refused to discuss or explore options, refused to listen, did not show interest)

Respondent’s (or their representative’s) “personal conduct” (emotional, angry, disrespectful) 

Respondent’s (or their representative’s) lack of preparation

Respondent did not know what they wanted

Respondent did not want to invest the time

Respondent’s representative had limited or no authority to settle 

Respondent’s representative did not have the time

Respondent needed legal representation

Other Respondent (or representative) conduct

 ____________________

(End of Page 17 )
 

30. GROUP D - ADMINISTRATIVE ISSUES THAT ARE BARRIERS TO SETTLEMENT:  Please choose the important administrative barriers that you find generally interfere with resolution within this list of administrative issues.  CHECK ALL THAT APPLY.

The mediation was not scheduled properly.

E-signature delays caused the agreement to fall apart.

I needed more support with settlement agreement template language.

EEOC program procedures/rules interfered with resolving the case.

Other, please specify. ____________________

31. GROUP E - FORUM BARRIERS - TACTICS I CAN NO LONGER USE EFFECTIVELY: Are there any in-person mediation tactics that you can no longer use effectively in video mediation?

No

Yes

This Question is Conditionally Shown if: (31 = Yes)

32. Please identify these tactics you can no longer use effectively.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 18 )
 

For the EEOC mediations resolved via VIDEO platforms, please choose the top 3 factors you believe facilitate resolution for each of the categories below.  

33. A. Mediation Context: In the list that follows, please choose the top 3 factors you believe facilitated resolution.  If another reason or reasons apply, use "Other".  PLEASE CHOOSE 3 FROM THE LIST.

The VIDEO background humanized the parties in a manner not possible in person.

The VIDEO screen allowed for focus on the participants’ faces in a manner not possible in person.

Events that occurred in the background of the mediation created a positive environment for settlement.

VIDEO mediation influenced the parties  to be less formal in their interactions.

The ability to keep these parties out of the same room or adjacent rooms as compared to an in-person mediation.

VIDEO mediation provided the ability to continue a mediation because of less external time constraints (e.g., office closing, sundown in a downtown or other area people prefer to leave earlier no need to avoid rush hour or other traffic issues, parking issues, etc.).

I see more effective decision-making processes.

Other ____________________

(End of Page 19 )
 

35. B[31]. CHARGING PARTY AND REPRESENTATIVE CONDUCT THAT WAS A BARRIER: Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential charging party or charging party representative conduct.If another reason or reasons apply, please use "Other".  PLEASE CHOOSE 3 FROM THE LIST.

Charging Party (and/or their Esq./Representative) was flexible, open, straightforward.

Charging Party (and/or their Esq./Representative) was realistic.

Charging Party knew what they wanted.

Charging Party (and/or their Esq./Representative) was prepared.

Charging Party was willing to listen to their lawyer or legal argument.

Charging Party (and/or their Esq./Representative) was able to effectively communicate with the other party over Zoom, including their effective use of Zoom tools, such as, document share, chat, communication icons, invite function, etc.

Charging Party (and/or their Esq./Representative) was able to work cooperatively with mediator on Zoom.

Charging Party expressed/exhibited need for closure.

Charging Party (and/or their Esq./Representative) stated a commitment to settle the case.

Charging Party (and/or their Esq./Representative) was able to effectively use other Zoom tools such as document share, chat, communication icons, invite function, etc.

Charging Party (and/or their Esq./Representative) followed the mediation rules for Zoom.

Charging Party (and/or their Esq./Representative) possessed problem solving problem skills.

Charging Party Esq./Representative prepared their client.

Charging Party Esq./Representative was focused.

Charging Party Esq./Representative effectively managed their client in the mediation.

Other ____________________

(End of Page 20 )
 

36. C.[32] RESPONDENT AND RESPONDENT REPRESENTATIVE CONDUCT BARRIERS: Please choose the top 3 barriers you find generally interfere with the resolution within this list of potential respondent or respondent representative conduct.  If another reason or reasons apply, please use "Other".  PLEASE CHOOSE 3 FROM THE LIST.

Respondent (and/or their Esq./Representative) was flexible, open, straightforward.

Respondent (and/or their Esq./Representative) was realistic.

Respondent (and/or their Esq./Representative) was prepared.

Respondent Esq./Representative effectively managed their client in the mediation.

Respondent (and/or their Esq./Representative) was able to effectively communicate with the other party over Zoom including effective use of Zoom tools such as document share, chat, communication icons, invite function, etc.

Respondent (and/or their Esq./Representative) knew what they wanted.

Respondent (and/or their Esq./Representative) was able to work cooperatively with the mediator on Zoom.

Respondent was willing to listen to their lawyer or legal argument.

Respondent expressed/exhibited need for closure or stated a commitment to settle the case.

Respondent Esq./Rep effectively managed an insurance adjuster.

Other ____________________

(End of Page 21 )
 

34. Please explain any novel factor or conduct not seen in in-person mediation that in your opinion was important in the resolution of this case.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 22 )
 

39. For cases where you spoke with the adjuster or were in conference listening to the insurance adjuster: Please rank the top 3 factors you believe facilitated resolutions for each of the categories below.  Assign a "1" to the most influential conduct that facilitated resolution, "2" to the second most important conduct, and "3" to the third most important conduct.  If another reason or reasons apply, check "Other". 

	1	2	3	4	5	6	7	8
Adjuster was flexible, open straightforward.
Adjuster was realistic.
Adjuster was prepared.
Adjuster knew what they wanted.
Adjuster was willing to listen to my communications
Adjuster was willing to listen to the company representative.
Adjuster was willing to listen to the Charging Party.
Other

(End of Page 23 )
 

40. For mediations where the Insurance adjuster spoke to the parties:  Was the Insurance adjuster able to effectively communicate with the parties over Zoom?

Yes

No

Not sure

41. I have had multiple previous experiences mediating with the following parties. (Check all that apply):

Charging Party’s Attorney or other Representative

Respondent

Respondent’s Attorney or other Representative

Insurance adjuster

(End of Page 24 )
 

This Question is Conditionally Shown if: (41 (Count) > 1)

Charging Party’s Attorney or other Representative: % is Conditionally Shown if: (41 (Charging Party’s Attorney or other Representative) = Selected)
Respondent: % is Conditionally Shown if: (41 (Respondent) = Selected)
Respondent’s Attorney or other Representative: % is Conditionally Shown if: (41 (Respondent’s Attorney or other Representative) = Selected)
The Insurance adjuster: % is Conditionally Shown if: (41 (Insurance adjuster) = Selected)

42. You have indicated that you had multiple previous experience with one or more mediation participants, please estimate the percentage of prior mediations where a previous party or representative attended:

Charging Party’s Attorney or other Representative: %	____________________
Respondent: %	____________________
Respondent’s Attorney or other Representative: %	____________________
The Insurance adjuster: %	____________________

43. In general, for mediations where you have had a prior case with one party (or their counsel/representative) how strongly did this prior experience impact the mediation outcome?

No impact at all

Minimal impact

Some impact

Strong Impact

Very strong impact

This Question is Conditionally Shown if: (43 = Strong Impact OR43 = Very strong impact)

44. How is the mediation impacted if you have had prior experience mediating with one or more participants? 

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 25 )
 

45. Do you agree or disagree with this statement:  For EEOC cases that were resolved using VIDEO mediation, the settlements at these EEOC mediations often resolve actual or putative legal claims in other legal forums (e.g. state tort or contract claims, wage and hour law, workers compensation etc.).

Agree

Not Sure

Disagree

(End of Page 26 )
 

64. Do you agree or disagree with this statement: I find that parties tend to lose concentration sooner in video mediation than in my in-person mediations.

Agree

Disagree

Neither agree nor disagree

65. From my experience, I find that video mediation fatigue appears on average: 

In 1 hour or less

Over 1 hour to 2 hours

Over 2 hours to 3 hours

Over 3 hours to 4 hours

Over 4 hours

(End of Page 27 )
 

47. If you also mediate in other forums (state and local programs, FMCS, AAA, FINRA, etc.):  My experience with VIDEO mediation in other forums is similar to what I have answered here.

Agree

Disagree

Neither agree not disagree

Not applicable

This Question is Conditionally Shown if: (47 = Disagree)

48.  

Please explain the major differences you see between EEOC video mediation and video mediation in other forums.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

49. If you also mediate in other forums check if you have used any of the following mediation tactics and techniques not used at EEOC:

Online blind bidding software (automated algorithm evaluates confidential bids from each party and if the two hidden bids are within a prescribed range then the case settles for the median)

Informational videos as part of convening

Dedicated pre-mediation technology convening session

Emotion Recognition Artificial Intelligence (AI)

Asynchronous Mediation Interaction

Other Settlement Algorithms

Pre-communication reframing

Other, Please specify. ____________________

(End of Page 28 )
 

50. Are there particular EEOC classifications of EEOC charges (race, age, gender, etc.) that you find more difficult to mediate by VIDEO compared to in-person?

YES

NO

This Question is Conditionally Shown if: (50 = YES)

51. If you answered “Yes” to the question above, please identify those types of charges you find more difficult to mediate in VIDEO compared to in-person:

Race

Ethnic origin

Gender

Sexual Harassment

Age

Disability

Disability accommodation

Sexual orientation

Religion

Religious accommodation

Color

Pay – EPA

Pregnancy

National origin

Retaliation

Reinstatement

Issues under other law that will be resolved in a universal settlement at EEOC mediation

Others, please specify:

 ______________________________________________________________________________________

(End of Page 29 )
 

52. Did you mediate any cases where there was a power imbalance you could not resolve due solely to a technology gap between the parties?

Yes

No

This Question is Conditionally Shown if: (52 = Yes)

53. In what percent of your cases did you find this irresolvable power imbalance?

    ____________________

This Question is Conditionally Shown if: (52 = Yes)

54. In what percent of your cases did this prevent settlement of the dispute?

    ____________________

This Question is Conditionally Shown if: (52 = Yes)

55. In what percent of the cases where there was a settlement did power imbalance impact the quality of the settlement?

    ____________________

(End of Page 30 )
 

56. How would you describe your experience conducting EEOC mediations out of the office during the closure of government workplaces?

It was more difficult conducting EEOC mediations out of the office.

It was easier conducting EEOC mediations out of the office.

It was similar to conducting EEOC mediations in the office.

57. What improvement/adjustments to equipment or scheduling would you recommend?

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

58. How has working at home affected your work/life balance?

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 31 )
 

59. In the space below list the disadvantages that you have experienced using VIDEO mediation:

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

60. In the space below list the advantages that you have experienced using VIDEO mediation:

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 32 )
 

61. In the space below list any other VIDEO mediation factors that impact the mediation:

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

62. List and explain anything that you believe would enhance EEOC’s VIDEO mediation:

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 33 )
 

63. Is there a question or issue that you believe this survey should have asked or addressed but did not?  This is important to the researchers and we appreciate your insights as we learn from you.  Please describe in detail below.

   ______________________________________________________________

   ______________________________________________________________

   ______________________________________________________________

(End of Page 34 )
 

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

If you have any adverse effects or concerns about the research, please contact the primary investigator at 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.  This research is approved by the Salisbury University’s IRB under protocol number 32.

THANK YOU!

(End of Page 35 )
 

APPENDIX B

Table 1.  Survey Participation

(Question 2: Please check the box below to provide your consent to participate in the survey.)

 

* Twenty-two surveys were excluded due to missing information or lack of experience in video mediation.

** Completion rate is defined in this study as the number of eligible surveys (139) divided by the number who consented to complete the survey (161 total mediators).

 

Table 2.  Mediator Status

(Question 3: Identify your status.)

 

 

Table 3.  Experience with Video Mediation Platforms

(Question 4: When was the first time you used Zoom, Microsoft TEAMS, GOOGLE Meet, or some other video platform tool to mediate in any forum?  For those who used video platforms prior to the pandemic shutdown:  Please type in the approximate year you first used Zoom, etc.}

 

 

 

Table 4.  Number of Video Mediations Conducted at the EEOC

(Question 8: How many video mediations have you conducted at the EEOC in the past 12 months?  If more than 60, please type in your best estimate.)

 

Table 5.  Degree of Agreement to the statement: “In comparison, my time in the video mediations at the EEOC usually take less time than compared to an in-person mediation.”

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

 

Table 6.  Average Length of Video Mediations

(Question 10: On average, how long do your EEOC video mediations last?)

 

Table 7.  Settlement Rates

(Question 11: I estimate that my settlement rates using video mediation platforms are:)

 

Table 8.  Perceived Settlement Value for the Charging Party

(Question 12: I estimate that the total value for the Charging Party of the settlement (monetary, non-monetary, etc.) are:)

 

Table 9.  Perceived Overall Quality of the Settlement for the Charging Party

(Question 13: I estimate that the overall quality of the settlement for the Charging Party in mediations using VIDEO as compared to IN-PERSON are:)

 

Table 10.  Perceived Overall Quality of the Settlement for the Respondent

(Question 14: I estimate that the overall quality of the settlement for the Respondent in mediations using VIDEO as compared to IN-PERSON are:) 

  

Table 11.  Estimated Percentage of EEOC Mediations that were not Resolved Because the Session was Conducted Remotely

(Question 16: What percentage of the EEOC mediations conducted by you during the pandemic to now do you estimate were not resolved solely because the session was conducted remotely and not in-person.)

 

Table 12a.  Tactics Used for In-Person Mediations Prior to the Use of Video Mediations

(Questions 17: Identify the tactics that you used for in-person EEOC mediations prior to the use of EEOC video mediations.  Check all that apply.)  

 

Table 12b.  Additional Tactics Used in In-Person Mediation

 

Table 13.  Additional Tactics Introduced/Employed in Video Mediations (Group A – Inviting key persons to join the session)

(Question 19: From the list below, please identify additional tactics that you have introduced/employed in video mediation to help parties reach resolution.  Check all that apply. [Group A - Inviting key persons to join the session])

 

Table 14a.  Additional Tactics Introduced/Employed in Video Mediations (Group B - Technology related tactics)

(Question 92: From the list below, please identify additional tactics that you have introduced/employed in video mediation to help parties reach resolution.  Check all that apply. [Group B - Technology related tactics])

 

Table 14b.  Verbatim responses:  Additional tactics in video mediation [Group B – Technology-related]

 

Table 15a.  Additional Tactics Introduced/Employed in Video Mediations (Group C - Administrative factors/tactics)

(Question 93: From the list below, please identify additional tactics that you have introduced/employed in video mediation to help parties reach resolution.  Check all that apply. [Group C - Administrative factors/tactics])

 

Table 15b.  Verbatim responses – Additional tactics in video mediation [Group C – Administrative Tactics]

 

Table 16.  Additional Tactics Used to Help Parties Reach Resolution – Verbatim Responses

 

Table 17a.  Setting Additional Ground Rules

(Question 20: Compared to in-person mediation, has the use of video mediation caused you to set additional ground rules?)

 

Table 17b.  Setting Additional Ground Rules – Verbatim Responses

 

Table 18.  Comparing Participant Focus in In-Person Mediations and Video Mediations

(Question 22: In general, comparing in-person mediations to your mediations with video, how would you compare the level of participant focus?)

 

Table 19a.  Mediators’ Ratings of the Video Dispute Resolution Skills of the Charging Parties’ Attorneys

(Question 23-1: For your EEOC video mediations, please separately rate the video dispute resolution skills of the Charging Party and Respondent attorneys and any Non-Legal Representatives who have appeared before you on a scale of 1 to 5 with:1 = Minimal Skills, 2 = Below Average Skills, 3 = Average Skills, 4 = Above Average Skills, 5 = Excellent Skills.  Check "N/A" if not applicable. [Charging Party's Attorney])

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

 

Table 19b.  Mediators’ Ratings of the Video Dispute Resolution Skills of the Respondents’ Attorneys

(Question 23-2: For your EEOC video mediations, please separately rate the video dispute resolution skills of the Charging Party and Respondent attorneys and any Non-Legal Representatives who have appeared before you on a scale of 1 to 5 with:1 = Minimal Skills, 2 = Below Average Skills, 3 = Average Skills, 4 = Above Average Skills, 5 = Excellent Skills.  Check "N/A" if not applicable. [Respondent's Attorney])

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

 

Table 19c.  Mediators’ Ratings of the Video Dispute Resolution Skills of the Charging Parties’ Non-Legal Representatives

(Question 23-3: For your EEOC video mediations, please separately rate the video dispute resolution skills of the Charging Party and Respondent attorneys and any Non-Legal Representatives who have appeared before you on a scale of 1 to 5 with:1 = Minimal Skills, 2 = Below Average Skills, 3 = Average Skills, 4 = Above Average Skills, 5 = Excellent Skills.  Check "N/A" if not applicable. [Charging Party's Non-Legal Representative])

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

 

Table 19d.  Mediators’ Ratings of the Video Dispute Resolution Skills of the Respondents’ Non-Legal Representatives

(Question 23-4: For your EEOC video mediations, please separately rate the video dispute resolution skills of the Charging Party and Respondent attorneys and any Non-Legal Representatives who have appeared before you on a scale of 1 to 5 with:1 = Minimal Skills, 2 = Below Average Skills, 3 = Average Skills, 4 = Above Average Skills, 5 = Excellent Skills.  Check "N/A" if not applicable. [Respondent’s Non-Legal Representative]) 

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

 

Table 20a.  Do Charging Parties Use Additional Tactics in Video Mediation?

(Question 24: Statement: I find that the Charging Party (not counsel) uses additional tactics in video mediation that I do not see at in-person mediation.)

 

Table 20b.  Additional Tactics Used by Charging Parties in Video Mediation – Verbatim Responses

(Question 66: Please identify additional new tactics you are seeing from Charging Parties/plaintiffs in video mediation that you do not see at in-person mediation)

 

Table 21a.  Do Respondents Use Additional Tactics in Video Mediation?

(Question 25: Statement: I find that the Respondent (not counsel) uses additional new tactics in video mediation that I do not see at in person mediation.)

 

Table 21b.  Additional Tactics Used by Respondents in Video Mediation – Verbatim Responses

(Question 67: Please identify additional new tactics you are seeing from Respondents in video mediation that you do not see at in-person mediation)

 

Table 22a.  Degree of Agreement to Statements Regarding the Mediators’ General Experience with Video Mediation – All Mediators

(Question 69: Based on your general experiences with video mediation by Zoom at the EEOC, please indicate whether you “Agree” or “Disagree” with each of the following statements.)

 

Table 22a.  Degree of Agreement to Statements Regarding the Mediators’ General Experience with Video Mediation – All Mediators (continued)

 

Table 22b.  Degree of Agreement to Statements Regarding the Mediators’ General Experience with Video Mediation – Tabulated by Mediator Status

(Question 69: Based on your general experiences with video mediation by Zoom at the EEOC, please indicate whether you “Agree” or “Disagree” with each of the following statements.)

 

Table 22b.  Degree of Agreement to Statements Regarding the Mediators’ General Experience with Video Mediation – Tabulated by Mediator Status (continued)

 

Table 22c.  Degree of Agreement to Statements Regarding the Mediators’ General Experience with Video Mediation – Tabulated by Mediator Experience

(Question 69: Based on your general experiences with video mediation by Zoom at the EEOC, please indicate whether you “Agree” or “Disagree” with each of the following statements.)

 

Table 22c.  Degree of Agreement to Statements Regarding the Mediators’ General Experience with Video Mediation – Tabulated by Mediator Experience (continued)

 

Table 23a.  Top Three Barriers to Resolution, Tabulated by Mediator Status – Group A: Video Technology/Setting Barriers

(Question 27: Please choose the top 3 most important barriers to resolution from this list of video technology barriers that you find generally interfere with the resolution of your EEOC cases.) – [Group A: Video technology/setting barriers]

 

Table 23b.  Top Three Barriers to Resolution, Tabulated by Mediator Experience – Group A: Video Technology/Setting Barriers

(Question 27: Please choose the top 3 most important barriers to resolution from this list of video technology barriers that you find generally interfere with the resolution of your EEOC cases.) – [Group A: Video technology/setting barriers]

 

Table 24a.  Top Three Barriers to Resolution, Tabulated by Mediator Status – Group B: Charging Party/Representative Conduct)

(Question 28: Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential charging party conduct.) [Group B – Charging Party/Representative Conduct]

  

Table 24b.  Top Three Barriers to Resolution, Tabulated by Mediator Experience – Group B: Charging Party/Representative Conduct)

(Question 28: Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential charging party conduct.) [Group B – Charging Party/Representative Conduct]

 

Table 25a.  Top Three Barriers to Resolution, Tabulated by Mediator Status – Group C: Respondent/Representative Conduct

(Question 29: Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential respondent conduct.) [Group C – Respondent/Representative Conduct]

 

Table 25b.  Top Three Barriers to Resolution, Tabulated by Mediator Experience – Group C: Respondent/Representative Conduct

(Question 29: Please choose the top 3 barriers that you find generally interfere with resolution within this list of potential respondent conduct.) [Group C – Respondent/Representative Conduct]

 

Table 26a.  Top Three Barriers to Resolution, Tabulated by Mediator Status – Group D:  Administrative Issues

(Question 79: Please choose the important administrative barriers that you find generally interfere with resolution within this list of administrative issues.) [Group D – Administrative issues]

  

Table 26b.  Top Three Barriers to Resolution, Tabulated by Mediator Experience – Group D:  Administrative Issues

(Question 79: Please choose the important administrative barriers that you find generally interfere with resolution within this list of administrative issues.) [Group D – Administrative issues]

  

Table 27a.  Are There In-Person Mediation Tactics That Are No Longer Effective in Video Mediation?

(Question 80: Are there any in-person mediation tactics that you can no longer use effectively in video mediation?)

 

Table 27b.  In-Person Mediation Tactics That Are No Longer Effective in Video Mediation – Verbatim Responses

(Question 81: Please identify these tactics you can no longer use effectively.)

 

Table 28.  Top Three Factors That Facilitated Resolution

(Question 30: In the list that follows, please choose the top 3 factors you believe facilitated resolution.

 

Table 29 – Novel Factors Not Seen in In-Person Mediation. 

(Question 76 -Please explain any novel factors or conduct not seen in in-person mediation that in your opinion was important to the resolution of this case.)

 

Table 30a.  Top Three Insurance Adjuster Behaviors/Actions that Facilitated Resolution

(Question 82: For cases where you spoke with the adjuster or were in conference listening to the insurance adjuster:  Please rank the top 3 factors you believe facilitated resolutions from the list of statements below.)

 

  

Table 30b.  Top Three Insurance Adjuster Behaviors/Actions that Facilitated Resolution, Tabulated by Mediator Status

(Question 82: For cases where you spoke with the adjuster or were in conference listening to the insurance adjuster:  Please rank the top 3 factors you believe facilitated resolutions from the list of statements below.)

 

Table 31.  Were Insurance Adjusters Able to Effectively Communicate with the Parties over Zoom?

(Question 83: For mediations where the Insurance adjuster spoke to the parties:  Was the Insurance adjuster able to effectively communicate with the parties over Zoom?)

 

Table 32a.  Multiple Experience Mediating with Mediation Participants

(Question 36: I have had multiple previous experiences mediating with the following parties:)

 

Table 32b.  Multiple Previous Experience Mediating with Charging Parties’ Attorneys or Other Representative

(Question 37: You have indicated that you had multiple previous experience with one or more mediation participants, please estimate the percentage of prior mediations where a previous party or representative attended: CHARGING PARTY’S ATTORNEY OR OTHER REPRESENTATIVE)

 

Table 32c.  Multiple Previous Experience Mediating with Respondents

(Question 37: You have indicated that you had multiple previous experience with one or more mediation participants, please estimate the percentage of prior mediations where a previous party or representative attended: RESPONDENT)

 

Table 32d.  Multiple Previous Experience Mediating with Respondents’ Attorneys or Other Representatives

(Question 37: You have indicated that you had multiple previous experience with one or more mediation participants, please estimate the percentage of prior mediations where a previous party or representative attended: RESPONDENT’S ATTORNEY OR OTHER REPRESENTATIVE)

 

Table 32e.  Multiple Previous Experience Mediating with Insurance Adjusters

(Question 37: You have indicated that you had multiple previous experience with one or more mediation participants, please estimate the percentage of prior mediations where a previous party or representative attended: INSURANCE ADJUSTER)

 

Table 33a.  Impact of Multiple Previous Experience Mediating with Mediation Participants

(Question 37: In general, for mediations where you have had a prior case with one party (or their counsel/representative) how strongly did this prior experience impact the mediation outcome?)

 

Table 33b.  Impact of Multiple Previous Experience Mediating with Mediation Participants – Verbatim Responses

(Question38: How is the mediation impacted if you have had prior experience mediating with one or more participants?)

                                          

Table 34.  Degree of Agreement to the Statement: “For EEOC cases that were resolved using video mediation, the settlements at these EEOC mediations often resolve actual or putative legal claims in other legal forums (e.g., state tort or contract claims, wage and hour law, workers compensation, etc.)”

 

Table 35.  Degree of Agreement to the Statement: I find that parties tend to lose concentration sooner in video mediation than in my in-person mediations.

 

Table 36.  Occurrence of Video Fatigue

(Question107: From my experience, I find that video mediation fatigue appears on average: )

 

Table 37.  Degree of Agreement to the Statement: “If you also mediate in other forums (state and local programs, FMCS, AAA, FINRA, etc.: "My experience with video mediation in other forums is similar to what I have answered here."

 

Table 38.  Mediation Tactics and Techniques Used by Mediators in Other Forums

(Question 84: If you also mediate in other forums check if you have used any of the following mediation tactics and techniques not used at EEOC.)

 

Table 39a.  Are There Classifications of EEOC Charges that Mediators Find More Difficult to Mediate by Video?

(Question 60: Are there particular EEOC classifications of EEOC charges (race, age, gender, etc.) that you find more difficult to mediate by video compared to in-person?)

 

Table 39b.  Classifications of EEOC Charges that Mediators Find More Difficult to Mediate by Video

(Question 61: If you answered “Yes” to the question above, please identify those types of charges you find more difficult to mediate in video compared to in-person.)

 

Table 40.  Power Imbalance – Technology Gap

(Question 85: Did you mediate any cases where there was a power imbalance you could not resolve due solely to a technology gap between the parties?)

 

Table 41.  Mediators’ Description of their Experience Conducting EEOC Mediations Out of the Office

(Question 99: How would you describe your experience conducting EEOC mediations out of the office during the closure of government workplaces?)

 

Table 42.  Improvements/Adjustments to Equipment or Scheduling – Verbatim Responses

(Question 100: What improvement/adjustments to equipment or scheduling would you recommend? Note: “None”, “N/A” excluded)

 

Table 43.  Work-Life Balance:  Verbatim Responses

(Question:  How has working at home affected your work-life balance?)

 

Table 44.  Disadvantages of Using Video Mediation – Verbatim Responses

(Question 62:  In the space below list the disadvantages that you have experienced using video mediation.)

 

Table 45.  Advantages of Using Video Mediation – Verbatim Responses

(Question 63:  In the space below list the advantages that you have experienced using video mediation.)

 

Table 46.  Video Mediation Factors that Impact Mediation – Verbatim Responses

(Question 64:  In the space below list any other video mediation factors that impact mediation.)

 

Table 47.  Comments/Suggestions that Mediators Believe Would Enhance EEOC’s Video Mediation – Verbatim Responses

(Question 65:  List and explain anything that you believe would enhance EEOC’s video mediation.)

 

Table 48.  Questions/Issues Not Addressed by the Survey - Verbatim Responses

(Question:  Is there a question or issue that you believe this survey should have asked or addressed but did not?)

[1] McDermott, et. al., The EEOC Mediation Program:  Mediators' Perspective on the Parties, Processes, and Outcomes, EEOC Order No. 9/0900/7632/G, July 31, 2001, Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc-mediation-program-mediators-perspective-parties-processes-and-outcomes (last accessed February 3, 2022).

[2] Ichniowski.Stephen, Email to E. Patrick McDermott, 7 February 2021 reporting settlement rates of 71.9% in FY 2019 which was all IPM; 69.4% for 2020 which was split 50/50 between IPM and ODR; and 70.9% in FY 2021 which was all ODR.

[3] E. Patrick McDermott, et. al., An Evaluation of the Equal Employment Opportunity Commission Mediation Program, Section D – The Evolution of the EEOC Mediation Program, EEOC ORDER NO. 9/0900/7632/2, Equal Employment Opportunity Commission, 2000 - September 20, 2000 )(referred to herein as the “2000 participant study”)(last accessed February 3, 2022).

[4] Craig A. McEwen, An Evaluation of the Equal Employment Opportunity Commission's Pilot Mediation Program. Report to the Center For Dispute Settlement under contract with the Equal Employment Opportunity Commission. March, 1994 (last accessed February 5, 2022).  McEwen’s study data was gathered prior to enactment of the Americans With Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”).  This suggests a different demographic mix of CPs than found in 1994.

[5] Supra note 1.

[6] E. Patrick McDermott, et. al., The EEOC Mediation Program:  Mediators' Perspective on the Parties, Processes, and Outcomes, EEOC Order No. 9/0900/7632/G, July 31, 2001, Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc-mediation-program-mediators-perspective-parties-processes-and-outcomes;

[7] E. Patrick McDermott and Ruth Obar, What’s Going On in Mediation:  An Empirical Analysis of the Influence of a Mediator’s Style on Party Satisfaction and Monetary Benefit, 9 Harv. Neg. L. Rev. 75 (Spring 2004), Reprinted in part in ADR in the Workplace, Cooper, Nolan and Bales, Second and Third Editions; in press for Fourth Ed. at Chapter XIII, 2020; E. Patrick McDermott and Ruth Obar, Mediation of Employment Disputes at the EEOC in S. Estreicher & J. Radice (Eds.),  Beyond Elite Law: Access to Civil Justice in America, (2016), Part III, Chapter 31: 463-477. Cambridge: Cambridge University Press. doi:10.1017/CBO9781107707191.035; McDermott, et. al., Mediator Style and Behavior:  What You See and What You Get, J. of Emp, and Labor Law, 2014, Vol. 15, Academy of Legal Studies in Business; See also, Cynthia Pierre, Perceptions of Procedural Justice in Workplace Dispute Mediations, Bargaining in the Shadow of Justice, Ph.D. Dissertation, The George Washington University School of Business and Public Management, February 22, 2006. 

[8]E. Patrick McDermott, et. al., An Investigation of the Reasons for the Lack of Employer Participation in the EEOC Mediation Program. Principle Researcher, Equal Employment Opportunity Commission, 2003 https://www.eeoc.gov/investigation-reasons-lack-employer-participation-eeoc-mediation-program. (last accessed February 11, 2022).

[9] While most mediations were performed in Zoom the broader term of video platform is used to encompass Zoom, Microsoft Teams, and similar video platforms.

[10] How The Pandemic Impacts Arbitrators and Mediators, Scheinman Center, New York State School of Industrial and Labor Relations at Cornell University, https://www.ilr.cornell.edu/scheinman-institute/practice/pandemics-impact-on-conflict-resolution?utm_medium=email&utm_source=custom-blast&utm_campaign=ilr-aad-outreach-2021 (November 29, 2010); How The Pandemic Impacts Plaintiffs Attorneys, Id.;  How The Pandemic Impacts Union Advocates, Id.; Florida Bar, 21^st Annual Labor and Employment Law Update, January 15, 2021; Labor Relations in the Time of the Pandemic, Labor and Employment Relations Association, https://youtube/ar3Cyy5Yjgkbe/ar3Cyy5Yjgk

May 28, 2020; Mediators Raise Concerns About Online Eviction Mediation Program https://boisedev.com/news/2021/07/08/mediators-raise-concerns-about-online-eviction-mediation-program/ (July 9, 2021); Anne Cullen, EEOC’s Pandemic Operations Get High Marks From Lawyers, Law 360, July 20, 2021; Colin Rule, New Mediator Capabilities in Online Dispute Resolution, Mediate.com,  https://www.mediate.com/articles/rule.cfm (December 2020); Ebner, Noam, E-Mediation (2012). M.S. Abdel Wahab, E. Katsh & D. Rainey (Eds.) Online Dispute Resolution: Theory and Practice, p. 357, The Hague: Eleven International Publishing, 2012, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2161451(last accessed February 5, 2022); Caputo, Andrea, Giacomo Marzi, Jane Maley, and Mario Silic. Ten Years of Conflict Management Research 2007-2017. International Journal of Conflict Management (Emerald) 30, no. 1 (January 2019): 87–110. doi:10.1108/IJCMA-06-2018-0078; LERA Dialogue, The Remarkable (And Often Very Surprising) Benefits of Online Mediation, 2020.

[11] A written version of the survey is attached as Appendix A.

[12] Ichniowski.Stephen. Email to E. Patrick McDermott, 27 September 2021 (identifying census for classifications of mediators surveyed).

[13] Id. (identifying mediations performed by classification). 

[14] This analysis does not provide an operational definition of “efficiency”.  In constructing an efficiency model mediation duration would be an element.

[15] Additional data at Table 7 (p. 23) indicates that over a third of the mediators see the opening offer and counteroffer appearing sooner in ODR and that this observation increases with mediator case experience.  

[16] The 1994 McEwen pilot study found that the average mediation time was 3 to 6 hours.

[17] This is the first of many “flexibility” measures embedded in the survey.

[18] Our one author’s experience in ODR mediation as an advocate in 2021 with a U.S. Magistrate Judge in a settlement conference and in a Financial Industry Regulation Authority (“FINRA”) mediation evidenced a qualitative improvement in caucusing via Zoom.

[19] Such simultaneous “dual channels” were nonexistent in IPM though one could posit that reading body language is a “dual channel”. 

[20] The verbatim comments were corrected for major spelling and grammar errors only.

[21] In the related survey of participants the open-ended verbatim comments mirror those of the mediators suggesting that the ODR advantages extend far beyond the issue of the Covid-19 pandemic.

[22] This methodological advantage is not found in the 2001 IPM mediator survey.

[23] Supra, n. 2.

[24] Id.

[25] Stuart Nagel, The Benefits of Win-Win Mediation, Judicature 85, no. 3 (November-December 2001): 110-111.

[26] The survey did not measure whether more adjusters were able to attend the mediations than before.  This is important to consider as a flexibility measure not measured by the survey.

[27] For a discussion of the repeat player issue See Lisa B. Bingham, Employment Arbitration: The Repeat Player Effect, Emp’ee Rts. and Emp. Pol. J. 1 (1997): 189-220. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95 (1974). See also Bahaar Hamzehzadeh, Repeat Player vs. One-Shotter: Is Victory all that Obvious, 6 Hast. Bus. L.J. 239 (2010)(empirical testing of the repeat player theory for Wal-Mart in federal court litigation.)  

[28] Id. Galanter at 96-103.

[29] Michael Z. Green, Tackling Employment Discrimination with ADR: Does Mediation Offer a Shield for the Haves or Real Opportunity for the Have-Nots, Berk. J. of Employ. and Lab. L. 26, No. 2 (2005): 321-362 at 340. (discussing the application of the repeat player effect to mediation).

[30] Green, Supra n. 29 at 336 (discussing “power differentials, cultural dynamics, and other societal

concerns involved with the resolution of a claim brought under a federal statute banning employment discrimination”).

[31] The online survey included this incorrect question.  While some mediators understood the intent of the question, their responses were excluded from the final report.

[32] The online survey included this incorrect question.  While some mediators understood the intent of the question, their responses were excluded from the final report.