Remarks of Maurice Wexler

The U.S. Equal Employment Opportunity Commission

Chair Dominguez, Vice-Chair Earp, Commissioners Miller, Silverman and Ishimaru, thank you for inviting me to participate as a speaker in today's proceedings addressing the benefits of mediation in the workplace and providing a forum within which to explore ideas for enhancing and expanding the EEOC's Mediation Program. My topic deals with looking ahead and charting the future of the EEOC's mediation program by increasing participation while demonstrating the workplace benefits of mediation.

I come this morning as a member of an informal focus group that was formed in August, 2002, as a product of a conversation earlier that year with the Chair regarding my experience while participating in a Commission-sponsored mediation.

I am now, and for many years have been a member of the Equal Employment Opportunity Committee of the Labor and Employment Law Section of the American Bar Association which, for convenience, I will refer to simply as the "ABA". The focus group was formed in a cooperative effort between the ABA and the EEOC. It is composed of Commissioner Leslie E. Silverman, Professor Christine G. Cooper, Loyola University School of Law, Chicago, Illinois; Gloria M. Portela, a member of Seyfarth & Shaw, Houston, Texas, and whose work is in large part that of a neutral; Wayne Outten, Outten & Golden, LLP, New York, NY, whose practice is primarily the representation of plaintiffs; Jon H. Rosen, the Rosen Law Firm, Seattle, WA, a member of the union bar; and, Laurice Royal, Senior Counsel, Labor and Employment, John Hopkins Health System Corporation, Baltimore, MD, a participant in the Commission's universal mediation program; and me. I am an attorney primarily representing management in employment matters. I am a member of the firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, with offices in Memphis, TN; Birmingham, AL; Jackson, MS; Atlanta, GA; Washington, D. C.; and, Beijing, China. My office is in Memphis, Tennessee.

Early on, our informal focus group adopted this mission statement:

The mission of this informal focus group will be to study the EEOC's National Private Sector Mediation Program with respect to (1) assessing the program's current level of acceptance and credibility; (2) evaluating its contribution to achieving the objectives of the various statutes administered by the EEOC; and (3) offering non-binding suggestions to the Commission related to promoting the program's growth in terms of acceptance and credibility so that the Commission and its constituents and stakeholders may be better served by and through the program.

The mission statement also notes that the focus group shall serve at the will and pleasure of the Chair and its volunteer members shall serve without compensation.

Because my topic is the future, it is my opinion that to better visualize the future, one must learn from the past, and understand the present. When Title VII was enacted in 1964, the EEOC, which was created by Title VII, was authorized and empowered to eradicate discrimination in employment through informal methods of conference, conciliation and persuasion. As time passed, litigation became the weapon of choice with respect to enforcement of Title VII, both by way of civil actions brought by private parties, as well as enforcement litigation instituted by the Commission after the enactment of the 1972 amendments to Title VII.

Consequently, the public became increasingly aware of Title VII, and the principles of discrimination-free, equal opportunity of employment through a number of celebrated cases brought under Title VII. Charge filings increased, as did the filing of employment discrimination cases, especially in federal court.

The Commission's resources were strained and case backlog became a challenge to the Commission, but also to the federal judicial system by reason of the increased caseload. Delays became the norm, and the cost in human capitol, as well as dollars, grew.

Along the way, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans With Disability Act added to the increasing caseload of the Commission as well as the Courts. Alternative Dispute Resolution, in general, and in particular, mediation, became increasingly important and gained attention across the nation as a way of achieving the dual purpose of enforcement and resolution. The Commission began a pilot program with respect to mediation in 1991, followed by the creation of a task force on mediation chaired, I believe, by Commissioner Paul Steven Miller. In 1995, the Commission issued its Policy Statement on ADR which caught the national rising tide of ADR. Because mediation is voluntary, it depends entirely on its credibility to gain acceptance among the Commission's constituency which includes both Charging Parties and Respondents.

It was within this context that the birthing occurred of the informal focus group. As the work of the focus group began, we engaged in a number of conference calls which led to the idea of developing a survey to be distributed among practitioners in the area of employment law. The survey became a reality through the guidance of Commissioner Silverman and the able assistance of her Special Assistant, Amy Habib Rittling, together with the hard work and commitment of the members of our diverse focus group.

As our focus group began work on developing a questionnaire to be used in connection with the prospective survey, we identified these predicate issues to explore by way of the proposed survey:

How to increase user acceptance of the mediation program and identify barriers to its use; Review participation in the mediation process by unrepresented parties, and explore the concept of pro bono representation of claimants and respondents; Evaluate the quality of program mediators, their training and backgrounds; look at internal v. external mediators, and assess the need for processes to monitor the quality of mediator performance including the elimination of under, or poor performers; Evaluate the mediator selection process, that is, whether mediators ought to be assigned by the EEOC or through a process by which the parties participate in mediator selection; Examine the timing of mediation, that is, at what point in Charge processing should it be offered; Explore the level of information provided by the parties to the mediator, including if, and when so provided; Defining and measuring successful mediations.

Through the cooperation of the Labor and Employment Section of the ABA in general, and in particular, the Equal Employment Opportunity Committee of that Section, the survey was distributed during the 2003 Mid-Winter Meetings of the ADR, EEO and Individual Right and Responsibilities Committees of that Section. Hard copies of the survey were made available to the registrants of those three meetings, followed by an e-mail distribution to the membership of those three committees, some of whom, of course, attended their Mid-Winter Committee Meetings. Virtually all of the recipients of the survey were lawyers, most of whom represented employers; a group one would expect to have substantial influence upon the decisions of their clients to mediate. You should also know that the survey questionnaire attempted to limit respondents to those whom at the time represented one or more clients with at least one pending EEOC or State FEPA Charge, or whose law firm, company, union or other organization did so.

In that way, the survey was crafted to assure that those who responded actually were or had been engaged in Commission-sponsored mediation opportunities, from and after January, 2000. Again, the idea of the survey was, to assess the accessibility and credibility of the mediation program on as near a national scale as we could manage under the circumstances.

Before discussing some of the preliminary results of the survey, we express our appreciation to Hillary Weiner, with the Office of General Counsel, Research and Analytic Services, who helped us structure the questions on our survey and then undertook the formidable task of putting the survey results in a useful format.

Because the focus group has not had a full opportunity to dissect, digest and discuss the survey's results or fully evaluate the outcomes discussed next, they are presented today with the understanding that they are preliminary and are subject to revision after a full opportunity has been afforded the focus group members, to better analyze and understand the survey results.

However, what follows are some of the early findings of that survey, which should be of interest to you. The respondents practice in a wide variety of geographic jurisdictions. They are from all over the country. Approximately 2/3ds of those responding have accepted at least one offer of mediation since January, 2000. From preliminary analysis, it appears that of those accepting the invitation to mediate, approximately 70% reported completing at least one mediation. From preliminary analysis, it appears that approximately 62% of the survey respondents had charges that were resolved either during or following mediation. With respect to the bases of charges in which Respondents have represented clients in connection with the EEOC mediation program, the most frequent bases involved termination issues arising under either Title VII, the ADEA or the ADA. The next most frequent bases appear to be promotion claims, followed by failure-to-hire charges. Pay issues, benefits claims and religious accommodation, as well as disability accommodation also appear, but much less frequently than those previously mentioned.

It appears that if mediation successfully resolves a charge, resolution most often occurs during the course of mediation, rather than afterwards. However, that is not to say that mediation does not play an important role in the successful resolution of cases following the completion of the formal mediation process. Speaking from my own experience, mediation provides a very important forum for grasping a more complete understanding of both the factual and legal issues involved in a charge, as well as providing valuable employee relations benefits which, among other things, include an opportunity to be heard, not to mention providing an incubator for creative solutions to sometimes very knotty workforce problems presented by charges and exposed through mediation. As you would expect, the model with respect to satisfaction with the mediation process follows somewhat a bell curve profile, with more being "somewhat satisfied" than "somewhat dissatisfied", and with fewer Respondents being "very dissatisfied" or "very satisfied". The corollary to that observation is that satisfaction increases in proportion to success in resolving the charges. More charge resolutions mean more satisfaction with mediation.

The preliminary results seem to demonstrate that the better the perceived skills of the mediator, the greater the satisfaction with mediation. This clearly suggests a strong correlation between a high level of mediator skill and charge resolution by way of mediation.

The foregoing observation appears to be validated by the results reflecting that perhaps the most important reason for declining mediation is doubt about the quality of mediators. Other reasons for declining mediation include:

A belief that the charge will be found to be without cause;
The party declining mediation believes there is no merit to the charge;
Respondents believe they must offer money to resolve the charge,
Pressure will be applied to settle cases that are without merit.

While those are the most frequent reasons uncovered for declining mediation, as you would expect, there are others.

Lawyers with mediation training and experience with the law of employment discrimination are most preferred as mediators, followed by non-lawyers with mediation training and experience with the law of employment discrimination. It is also preferred that the mediator not be an employee of the Commission. With respect to the selection of the mediator, allowing the parties to participate in mediator selection is much preferred. This, however, implicates issues about handling situations in which the parties cannot agree with respect to mediator selection, as well as the situations involved when one or both parties do not have the benefit of legal counsel. Implicit in any discussion of this issue is eliminating under-or poor performers, as well as dealing with the issue of maintaining a reasonable workload for mediators, both contract or non-contract. With respect to mediators providing a case evaluation to the parties to mediation, it is preferable that they do so after meeting with the parties.

Respondents prefer that mediation be offered shortly after a charge is filed, and before either a position statement is submitted or administrative investigation begun. This may reflect an interest in conserving resources of time, talent and money, as well as minimizing the hardening of positions that sometimes occurs in connection with an investigation.

Respondents believe that legal representation during mediation is at least somewhat important, which raises the question of dealing with parties to mediation who are without legal representation, who are much like pro se litigants in the judicial arena. According to the survey, however, most Respondents express an absence of willingness to undertake a pro bono representation of either Charging Parties or Respondents.

What do these preliminary findings mean for the future?

Given that 62% of the survey respondents had one or more charges resolve either during or following mediation, the continued value of the mediation program seems clear not only with respect to benefiting the parties involved, but also assisting the management of the Commission's workload, as well as that of the judicial system to which Charging Parties dissatisfied with the outcome of their Charges often turn for relief. Not wishing to engage in creative accounting, we do not try to assign any economic value to the benefits of mediation, but they are substantial, and should continue to be so. Therefore, effort should be made to improve the mediation success rate.

Because it is clear that mediation skills are directly correlated with successful mediations, and, therefore, the acceptance of the mediation process, evaluating the training of mediators and developing national standards with respect to mediator training would be worth consideration. Additionally, individual performance evaluations of mediators should also be considered to assure quality performance.

Develop a process by which the parties who wish to do so may participate in selecting the mediators. In recruiting or assigning mediators, take into account the survey results that suggest that attorneys and non-attorneys with mediation training and training in employment law are preferred as mediators. Providing mediation opportunities prior to requiring position statements or the commencement of administrative investigations seems to be very important. Undertake a comprehensive public relations or marketing strategy that has for its objective emphasizing the multi-lateral benefits of mediation while dispelling some of the perceptions that lead to the denial of invitations to mediate.

Does the mediation program have a future? Can the process and its rate of acceptance be improved? These preliminary survey results suggest the answer to both questions is "Yes".

In closing, thank you for the invitation to discuss the Commission's mediation program. It is undeniably worthwhile and of significant benefit to the Commission's stakeholders and the high purposes of Title VII and the other statutes enforced by the Commission.

This page was last modified on December 2, 2003.

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Remarks of Maurice Wexler