Remarks of Dr. E. Patrick McDermott, Ph.D, L.L.M., J.D., Assistant Professor, Franklin P. Perdue School of Business

The U.S. Equal Employment Opportunity Commission

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

Our research team, including myself, Dr. Anita Jose, Associate Professor of Business Management at Hood College and Dr. Ruth Obar, Senior Research Fellow at the Center for Conflict Resolution at Salisbury University, was charged with investigating a relatively straightforward issue "Why do employers decline the EEOC's offer to participate in the EEOC mediation program."

Our data represents a cross-section of EEOC offices and types of charges. In our comprehensive report, we discuss our research design, methodology, and profiles of the employer, employer representatives and the charges. Time does not permit a detailed discussion of these areas here today.

What Did We Find?

First, we found three important reasons why employers decline to mediate a particular case. The main and overwhelming factor in an employer's decision to decline the offer of mediation was that the "merits of the case did not warrant mediation." This was our key finding and essentially answers our research charge. Employers are not interested in mediating the charges because they perceive that the charges do not have merit. Here I would introduce a basic concept of one of my favorite courses "Negotiations Theory." A fundamental requirement for negotiations is that there exist some interdependent goals and objectives that require the parties to negotiate. We have found that employers do not believe that they have any obligation to negotiate, as they do not believe that the charge has merit.

The second major factor is that the employers did not believe that the EEOC was likely to issue a "reasonable cause" finding. This fits into a second key concept in why people negotiate. In addition to the interdependence factor already discussed, the conflict resolution literature notes that negotiation is necessary where there is no clear or established procedure for making the decision. Here, the employers have determined that they prefer another method for making the decision on the charge - the EEOC investigation.

The third major factor is the employers' perception that the EEOC mediation program requires monetary settlement and their unwillingness to offer any money in the particular charge at issue. This factor, while comparatively less important than the first two, was cited by half of the employers.

In the vast majority of the cases, the EEOC could not have done anything differently for employers to mediate the charge. This confirms the finding that it was the perception of the quality of the EEOC charge that drove the employers' decision. Without doubt, this is the answer to the question of why employers decline to mediate.

In order to contextualize employer responses, we examined the decision-making process and whether the decision was an informed one. To us, as important as the employer's decision not to mediate was the foundation for that decision. We concluded that once we have the contextual information, it would be much easier to interpret the employer responses to the key question of why they declined to mediate.

We found that in the majority of the cases, the decision not to participate in the mediation program was collective and internal to the organization. In making this decision a large number of decision-makers had prior experience with the EEOC and its processes. Forty-four percent of the survey respondents had experienced an EEOC decision, where there was reasonable cause to believe that the employer had violated the law. However, most (80%) had not been involved in an EEOC lawsuit. Most decision-makers were familiar with the EEOC mediation program. In fact, 54% of them had participated in the program before.

We also examined the efforts the employers made to investigate the EEOC charge. We found that the vast majority of the employers had conducted their own internal investigation of the charges prior to declining to participate in the mediation program. They used a wide variety of methods to do their internal investigation of the charges. These actions include document reviews, consultations with other management and non-management employees, conversations with charging parties' supervisors, and reviews with company attorneys.

We concluded that employers who decline mediation were well informed about the EEOC and its processes, the EEOC mediation, and the merits of the charge at issue. Thus, the employers were informed decision-makers.

In summary, employers who declined to mediate did so because they did not believe that the EEOC charge had merit and thus preferred that the EEOC investigate the charge. In reaching their decisions, the employers were well informed about the EEOC and about the particular charge at issue.

What Could be Done?

As presently designed, at the moment in time when mediation is offered, employers have investigated the charge internally and are not ready to negotiate based on their perception of the case. In general, this lack of interest in mediating is not related to the EEOC or its mediation program. Thus, there is little that the present pre-investigation program, as structured, can do to increase the participation rate.

Should the EEOC wish to increase its mediation participation rate it can do so by changing the employer's perception of the merits of the charge at issue. This may be done a few ways. First, employers believe that some of the charges offered for mediation should never have been selected for mediation as they are completely without merit. If this is the case, then more careful screening should result in a richer quality of charges and thus a higher mediation acceptance rate.

A second way to change the employer perception of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. If mediation was offered at a later point, after an EEOC investigation indicates that the charge may have merit but before a final investigative determination, it is expected that mediation would be more attractive to the employers. This is supported by our research results indicating that many employers are willing to mediate the charge later if necessary. It is also supported by the anecdotal comment that investigators may "cherry pick" some of the better charges as employers are anxious to negotiate.

Another implication pertains to the marketing of the EEOC mediation program to the employers. As the study that evaluated the EEOC mediation program found, the vast majority of employers who participate in the program are satisfied with the process.⁽¹⁾ While the main reason for the lack of employer participation is the perceived lack of merit of the charge, it is possible that a better marketing of the program could yield more employer participation. A marketing program designed to emphasize the benefits of mediation and the positive experience of previous participants of the EEOC mediation program could improve employer participation, especially among those with negative or neutral perception about the EEOC. Similarly, this marketing program could be used to correct the perception of some employers that the mediation program always requires monetary settlement. It could make it clear to all parties that it is the particulars of the charge that determine remedies and that a non-monetary resolution is possible, and indeed warranted, in the resolution of some charges.

In sum, the failure of more employers to enter EEOC mediation in its current design as a pre-investigative program is primarily structural. Employers do not believe that they have incentive to mediate at the pre-investigation stage because at this time in the process they do not believe the charge has merit; some also believe that they have to pay money at mediation. These employers also do not have any concern that the EEOC investigation that will occur in lieu of resolution at mediation will be adverse to their interests. If it desires greater employer participation in the mediation program, the EEOC must address the structural issues raised by the employers.

A Note of Thanks

Madame Chair, we would like to thank you and your fellow Commissioners for your interest in our research. We would also like to thank our EEOC contacts during this study, Polly Choate, Elly Miller, and Roy Reese, for their technical assistance and support. We also would like to thank John Nicholson for his assistance to Dr. Ruth Obar in integrating critical EEOC data from its charge database with our research database.

Footnotes

1. Please refer to the report titled, An Evaluation of the EEOC Mediation Program, for employer satisfaction ratings.

This page was last modified on December 10, 2003.