MEDIATION

 

I feel I am being discriminated against or harassed at work.

 

What is mediation and why might it help?

 

Is all mediation the same?

 

What are some features of mediation as compared with other forms of dispute resolution?

 

Will the EEOC force me to participate in mediation?

 

Can I choose my mediator?

 

What if I feel like my mediator is biased or is not treating me fairly?

 

What are the potential outcomes of mediation?

 

I am getting ready to go to mediation. What should I do to prepare?

 

Do I need to bring a lawyer with me to mediation?

 

I have heard that plaintiffs who bring workplace discrimination cases in court usually win and get large sums of money. Is this true?

 

I have more questions about mediation, what resources can you recommend?

 

 

What is mediation and why might it help?

 

Mediation is a process in which two parties to a dispute discuss it in a confidential meeting and in the presence of a neutral third part who attempts to facilitate the discussion.

 

Is all mediation the same?

 

No. There are a few different styles of mediation, each of which would create a different experience for you.

Facilitative mediation emphasizes the interests of both you and your employer, and focuses on each of your problem solving, creativity, and personal assessments. This style emphasizes self-empowerment.

Evaluative mediation focuses the legal aspects of your dispute. An evaluative mediator may use a wide range of techniques, which could include questioning to determine strengths and weaknesses of each party’s case, offering information or advice on procedure and substance, and even predicting possible outcomes if the dispute were to go to court.

Transformative mediation focuses on the relationship between you and your employer, as opposed to placing an emphasis on problem solving. A transformative mediator may encourage you and your employer to define issues and decide on settlement terms yourselves, thus helping each of you understand the other party’s perspective.

Mediation may differ depending on whether it is provided by your employer, the EEOC, or a private third party. Make sure to acquire as much information as possible about what your options are.

 

What are some features of mediation as compared with other forms of dispute resolution?

 

The mediation process is confidential (except for the contents of your initial claim, if you file with the EEOC) which means that, unlike in litigation, nothing that happens in a mediation session can ever become public. This may be particularly good for individuals who are sensitive or have personal information they wish to remain private. It is important to keep in mind that the litigation process, particularly obtaining a lawyer, can be expensive. Therefore, if you do not have access to the necessary resources, mediation or negotiation may be a more viable option.

 

Will the EEOC force me to participate in mediation?

 

No. Mediation is voluntary for both parties. This also means your employer may not agree to your request for mediation.

 

Can I choose my mediator?

 

It depends. If you file your discrimination claim with the EEOC, you will not have any control over which mediator you are assigned. If you choose a private mediation group, which could cost a significant amount of money, you have more control over the choice of mediator.

 

What if I feel like my mediator is biased or is not treating me fairly?

 

Try to talk to your mediator ahead of time to make sure that you are as comfortable with him or her as possible, and so that the mediator will understand your issues and what you would like to get out of mediation. If you are unhappy with the way you are being treated in mediation, or if you feel uncomfortable with the terms of proposed solutions, remember that mediation is voluntary. Do not be afraid to speak up during the mediation session. Unlike a judge or jury, the mediator has no power to force you into any sort of settlement, so the worst-case scenario is that you walk away.

 

What are the potential outcomes of mediation?

 

There are many possible outcomes of mediation, depending on your situation. Some examples of non-monetary outcomes include receiving a good recommendation letter from your employer, having your job reinstated, being transferred to another department or supervisor, getting an apology, getting a promotion, or your employer being forced to go through sensitivity training. If your claim involves lost wages, you may be able to reach a monetary settlement to recover that loss.

At the end of the mediation, the mediator will write up the terms you and your employer have agreed upon, and each of you will sign it. This document is a legally enforceable agreement, which means that if your employer does not fulfill the terms you can sue your employer. In doing so, you would be asking the court to enforce the signed settlement agreement.

 

I am getting ready to go to mediation. What should I do to prepare?

 

You know yourself and your situation best, so one of the most important things you should do before and during mediation is to ask a lot of questions to ensure that you have the information you need to fully understand and participate in the process. For the same reason, it is also crucial for you to inform the mediator of any preferences you might have. For example, depending on your situation, you may want to limit the time you spend with your employer in mediation. You may want to limit how much talking you have to do during the mediation process, or contrarily make sure there is amply opportunity for you to talk.

In addition, you should think about and prioritize the outcomes you want. Consider some options listed above, as well as anything else you might like to see happen. Writing these down and bringing them to the mediation may be useful. You might consider bringing a representative—a lawyer, friend, family member, union representative, or co-worker. You may want to do this if you are worried that you will not know all your rights, if you feel you may not be able to adequately express how you feel, if you just want support, or if you want a “voice of reason” that you can trust. Some mediation programs limit the type of representative you can bring, so make sure to understand what your options are in this regard.

 

Do I need to bring a lawyer with me to mediation?

 

No. Whether or not you bring a lawyer is up to you. Attorneys can provide you with information about your rights, how your case might come out in court and the general process involved. The support of someone who is trained in the law and acting in a professional capacity might help you feel at ease. However, attorneys may have interests that diverge from yours, and, when pay is involved, may prioritize a monetary settlement more highly than you. If you do choose to bring a lawyer, take care to communicate your desires clearly and strongly to that person to ensure that you are adequately represented and not pressured into settlement conditions you do not want.

 

I have heard that plaintiffs who bring workplace discrimination cases in court usually win and get large sums of money. Is this true?

 

This is not true, although media coverage sometimes suggests this. Plaintiffs only win between 32% and 41% of the time. When they do win, average awards are between $125,000 and $150,000, depending on whether the case goes to a jury or is settled out of court. This does not necessarily mean that you should not bring your case to court, but it is important that you know the actual success rates when making your decision.

 

I have more questions about mediation, what resources can you recommend?

 

The EEOC website has a lot of helpful information. Check out:
--Mediation homepage (http://www.eeoc.gov/eeoc/mediation/)
--Fact sheet (http://www.eeoc.gov/eeoc/mediation/facts.cfm)
“Questions and Answer” (http://www.eeoc.gov.eeoc/mediation/qanda.cfm)