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Agreeing to Mediate All of Your Employment Practice Disputes - Pros and Cons

On July 12, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) announced that a Fortune 300 employer has entered into a National Universal Agreement to Mediate (NUAM) with the Commission. Both parties signed the agreement, which requires an attempt to resolve workplace disputes through mediation prior to an EEOC investigation and litigation.

The NUAM covers all of the employer's establishments throughout the United States.

Pursuant to the Agreement, all eligible charges of discrimination filed with the EEOC will be referred to mediation and a corporate representative will handle all inquiries and logistical matters related to the potential charges.

According to Nicholas Inzeo, Director of the Office of Field Programs of the EEOC:

Nationwide mediation agreements like this are a classic win-win. NUAMs are a non-adversarial and efficient way for companies to handle discrimination charges using the EEOC as a partner and advisor. EEOC mediation encourages a positive work environment, and the company saves time and money. Everyone benefits.

The EEOC strives to improve operational efficiency and effectiveness and expanding mediation is a key component in attaining this goal. The Commission has entered into 257 national and regional Universal Agreements to Mediate (UAMs) with private sector employers. EEOC district offices also have entered into roughly 1,850 mediation agreements at local levels.

The EEOC's National Mediation Program was implemented in April 1999. Since then, over 148,000 charges have been mediated with a 70 percent success rate. "EEOC and Family Dollar Stores Sign Mediation Pact," www1.eeoc.gov (July 12, 2012).

Commentary

Universal Agreements to Mediate (UAM) are agreements between the EEOC and an employer to mediate all eligible charges filed against the employer, prior to an EEOC investigation or litigation. A UAM may be local, regional, or national.

There are different forms of mediation. It is unclear whether the agreement to mediate in this matter requires binding mediation or not. Binding mediation and arbitration takes a claim from a jury or judge and places the decision in the hands of a mediator or arbitrator. It also effectively minimizes or eliminates legal defenses should any exist. Mediators are less concerned with legal rights as they are with finding common ground.

There are different types of mediators as well. Not all EEOC mediators are the same. This inconsistency can make it difficult for an employer to judge whether an agreement to mediate will be effective or not.

Finally, the EEOC provides mediation whether the employer signs an agreement or not. Mediation with the EEOC is always an option.

According to the EEOC, entering into an UAM shows the employer's willingness to mediate, which may contribute to an ultimate satisfactory resolution of an issue. UAMs also provide a point of contact to the employer, which may help expedite the flow of information between the employer and the EEOC. And, importantly, UAMs allow parties to opt out of mediation on a case-by-case basis if either party believes the claim is not appropriate for mediation.

Whether an employer is governed by a NUAM or a regional or local UAM, settlement should always remain a consideration when the employer is sued.

Monetary loss to the employer is just one factor to consider when deciding if and when to settle a case. Lawsuits are distracting. They reduce productivity and strain workplace morale. Discrimination lawsuits, in particular, can distract employees and cause them to question their commitment to their employer. The employer's good standing in the community and its ability to hire the most desirable employees may suffer.

When evaluating the price of going to trial or rejecting a settlement offer, employers must consider the value of time, including the value of your employees' time - time spent responding to discovery requests, attending depositions, and providing information to support or defend motions.

Settlement should be explored as early as possible, but it is never too late to consider it. There are some situations in which mediation or settlement is not the best answer, so make sure an experienced employment attorney is involved from the outset of a lawsuit to help you evaluate options.

Before signing an agreement to mediate, you should speak with an attorney. There are different types of mediation and not all mediators are the same. The other thing to consider is that mediation often tries to find fault with both parties. The result is a compromise. Compromise can include payment to and retention of the complainant…two things employers are not always willing to agree to when a dispute arises.

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