This project would not have been possible without the generous support of several individuals. The authors would like to thank a number of individuals who provided much needed assistance to our project. We would also like to acknowledge the contributions of several individuals who were behind-the-scene players in ensuring that the national mediation program became a reality.

We would like to acknowledge Chairwoman Castro for her leadership and unwavering commitment to the mediation program, which, as this report shows, is very well received by its participants. The accomplishments of the mediation program, under the leadership Chairwoman Castro, can only be described as impressive.

We would also like to note the contributions of Commissioner Paul Miller in the development of this mediation program. He, along with R. Gaull Silberman, provided valuable leadership during the development of the program. We also thank Chairman Miller’s Senior Advisor, R. Paul Richard, for assistance in this project. We note Paul’s early recognition of the wide-ranging benefits that mediation provides for its participants.

Similarly, the authors would like to recognize Tulio L. Diaz, Jr., Director of the EEOC's Washington Field Office, whose support and vision was critical in establishing that office's and the Commission's first full-time mediation program in 1996. Tulio was truly ahead of his time.

The authors would like to thank Elizabeth M. Thornton, Director of the Office of Field Programs. From our first meeting with the EEOC to discuss this project, Ms. Thornton has served as an important resource.

We would like to acknowledge Irene Hill, Attorney Advisor, and Paula Choate, Director of the Field Coordination Programs Division, who assisted in the development and oversight of the expanded mediation program. We are also grateful to Irene and Paula for their valuable assistance during our endeavor. Our appreciation also goes to Sharon Bower who provided valuable feedback regarding our work.

Additionally, we would like to acknowledge the effort of EEOC's 25 ADR Field Coordinators. They were the lynchpin of our data gathering. Without their yeoman effort, this research could not have been done. We would also like to express our appreciation to Pierrette Hickey, Director of the Charge Data System Division, Mary (Midge) King, Computer Specialist, and Robin Hakan, Computer Specialist, for their technical support, assistance, and cooperation during key points of this project.

Our student assistants, Susan Frank and Aika Swai, were an invaluable part of the team.

Last, but not least, we would like to thank Steve Ichniowski, EEOC National ADR Coordinator, for his assistance and support, in many ways, throughout this project. As one of the primary designers and administrators of the EEOC expanded mediation program, Steve’s insights and experiences were invaluable. Steve previously served as the Commission's first full-time ADR Field Coordinator in the Washington Field Office from 1995-1997 where he was responsible for designing that office's mediation program, which served as a model for the EEOC's current expanded national mediation program.

Executive Summary

Pursuant to a contract with the Equal Employment Opportunity Commission (EEOC), the authors surveyed the participants of the EEOC mediation program regarding their opinions of the performance of the program. This report presents our findings.

The participant evaluation of the EEOC mediation program shows a high degree of participant satisfaction with the EEOC mediation program. Both the participant groups—charging parties and respondents—gave high marks to the various elements of the EEOC mediation program. A summary of our conclusions and their implications are the following:

An overwhelming majority of the participants (91% of charging parties and 96% of respondents) indicated that they would be willing to participate in the mediation program again if they were a party to an EEOC charge. Participants, regardless of their satisfaction with the outcome of mediation, overwhelmingly indicated their willingness to return to mediation. This is a strong indication of their satisfaction with the EEOC mediation program. The fact that willingness to return was high, even among participants who did not receive what they wanted, indicates that a fair and neutral process that provides participants with an opportunity to present their views may be even more important than the obtained outcome.
The participants expressed strong satisfaction with the information they received about mediation from the EEOC prior to their attendance at the mediation session. They also felt very strongly that they understood the process after the mediator’s introduction of the process. One of the EEOC goals of mediation is to provide adequate information about mediation to the parties. The results show that the EEOC was very successful in fulfilling this goal.
The vast majority of the participants agreed that their mediation was scheduled promptly. The EEOC’s prompt scheduling of mediation sessions is indicative of effective program management. It also increases the chances of dispute resolution since parties get together in a timely fashion before they hardened their positions.
An overwhelming majority of the participants felt that they had a full opportunity to present their views during mediation. Thus, the "voice factor," an essential element of procedural justice, was present in the EEOC mediation process.
The participants were very satisfied with the role and conduct of the mediators. They felt strongly that the mediators understood their needs, helped to clarify their needs, and assisted them to develop options for resolving the charge. They felt even more strongly that the procedures used by the mediators were fair. The questions regarding the neutrality of the mediators elicited some of the strongest responses from the participants, who felt that the mediators were neutral not only in the beginning of the process, but also remained neutral throughout the process. One of the EEOC goals of mediation is neutrality. As the participant responses indicate, the EEOC was successful in achieving this goal.
Participant satisfaction with the distributive elements of mediation was more tempered than their satisfaction with the procedural elements. This is indicative of the fact that mediation is a facilitated negotiation process where parties do not usually obtain what they wanted going into the negotiations. This result is also consistent with the dispute resolution literature on distributive justice. Among the distributive elements, the participants were most satisfied with the fairness of the mediation session. They also agreed that most of the options developed during mediation were realistic solutions to resolving the charge. The majority of the participants were also satisfied with the results of mediation.
Participant satisfaction with the EEOC mediation program remained high even when the participant responses differed, at times, based on the nature of the charges, such as the statute, basis, and issue, and the characteristics of the mediation session, such as representation, mediator type, and mediation status.
Overall, participant feedback regarding the EEOC mediation program indicates that the program is, by any measure, clearly acceptable to the charging parties and respondents who participated in it.

I. Introduction

Consider the following headlines from recent articles: "The National Association of Securities Dealers, Inc. (NASD) Launched a New Dispute Resolution Subsidiary;"1 "Stay out of Court - Attorneys Surveyed Recommend Mediation,"2 "Qualcomm, Unhappy Employees Try Mediation,"3 and "Judge Orders Mediation in Lawsuit Over Joint Venture."4 Clearly, more and more employers and employees are becoming concerned that settling disputes in a courtroom is a lengthy, time-consuming, costly, and often-frustrating process that results in a win-lose outcome. They are actively looking for alternative dispute resolution (ADR) techniques. The unionized sector of the economy for decades has used such techniques to resolve labor-management disputes. Now, diverse organizations across the United States of America (USA) have become receptive to ADR, and to mediation in particular.

Mediation is a dispute resolution process in which a neutral third party, who has no final decision-making authority, assists disputing parties in developing options for an acceptable resolution of the dispute.5 A central feature of a successful mediation is the interaction among the concerned parties and the mediator to arrive at a voluntary, mutually acceptable resolution. This can mean, the parties, with the help of the mediator, engage in "give and take" resulting in a compromise or, with the mediator's assistance expand the possibilities for resolution. In other words, mediation is a facilitated negotiation. Thus, mediation differs from other ADR processes and from litigation in significant ways, including, but not limited to: (1) the parties maintain control over the outcome if a settlement is reached; (2) in compromise situations, there is a diminished sense of win-lose.6 Furthermore, if the parties do not agree in mediation, then they have the option of submitting their case for administrative and/or legal consideration.7

The largest workplace mediation program is the Equal Employment Opportunity Commission's (EEOC) voluntary mediation program, a detailed description of which is presented in Section IV of this report. For example, during the first twelve months of the expanded mediation program (4/1/99 through 3/31/00), the EEOC conducted over 11,700 mediations and more than 7,500 charges were resolved through the program. Is the program viable? How is it perceived by the participants? Acceptability of the dispute resolution system has been described as one of the "ultimate tests" of the system's viability.8 The purpose of this report is to present the results of a comprehensive survey of the participants (charging parties and respondents) in the EEOC mediation program regarding their experience with and opinions of the program. More specifically, this report presents the analysis of the participants' opinions regarding the procedural elements of the mediation, the performance of the mediator, the fairness of the mediation, and participant satisfaction with the results of the mediation.

Researchers have examined the acceptability of dispute resolution programs on a limited basis. For example, Kochan, Lautsch, and Bendersky have examined the performance of the mediation program of the Massachusetts Commission Against Discrimination (MCAD). Similarly, McEwen has examined the EEOC's pilot mediation program that was the precursor to the current EEOC mediation program studied here. Our study is the most comprehensive evaluation of the largest mediation program seeking to resolve employment law disputes - the EEOC's mediation program.

This report is organized into several sections. After the introductory section, a brief review of the literature in the field is presented. The third section introduces our research and its premises. The fourth section gives a brief background of the EEOC, its strategies under different administrations, and its mediation program. The fifth section presents the research methodology of our study. The sixth section details the results and analyses of the study. The seventh section compares the results of our study with those of other studies that have evaluated the effectiveness of mediation programs. The report concludes with the discussion section, which focuses on the implications of the results.

II. Literature Review

The literature on alternate dispute resolution methods, including mediation, can be divided into two categories: theoretical and empirical. Most of the theoretical literature attempts to define mediation and point out its advantages and disadvantages,9 establish the protocols for mediation,10 and/or speculate on the uses of mediation in different contexts.11 The empirical literature includes case studies and surveys.12 Since mediation is a rather new field of academic research, there is not a significant body of empirical research in the field. It is not our intention to review the entire literature on mediation. We will review both theoretical and empirical literature to the extent to which they aid our investigation, which is to measure participant experiences with and opinions of the EEOC mediation program.

This literature review is organized into three subsections. The first subsection defines mediation and discusses its uses, advantages, and disadvantages. The second subsection looks at "justice and ADR program evaluation." The third subsection depicts the empirical studies that evaluate the performance of mediation programs.

A. Mediation: Background, Definitions, Uses, and Advantages

During the past few years, ADR methods have gained increased acceptance in the U.S. workplace. The report of the Commission on the Future of Worker Management Relations (The Dunlop Commission), which included an investigation of the usefulness of ADR methods in resolving workplace disputes, provided an additional impetus for the examination of the merits of ADR. The Dunlop Commission pointed out two factors that beg for alternatives to the traditional system of employment litigation. First, under the traditional litigation system low-wage workers were not faring as well as the higher paid workers since they might not have the time or money to pursue a court case. Thus, the traditional system did not serve all people equally well. Second, the traditional litigation system was dominated by ex-employees, rather than by employees who sought to redress complaints while continuing employment. This shows that for those employees who want to continue with their current employer, the traditional system did not offer much assistance. Given these patterns, the Dunlop Commission recommended that ADR methods be encouraged.13

From the Grecian city states to the 21st century USA, mediation has brought together parties to a dispute in search of solutions. Mediation has been found to be an effective dispute resolution tool for producing settlements to disputes, while providing a high degree of disputant satisfaction with the process.14 This use of mediation to resolve employment law disputes is receiving increased attention from attorneys and scholars. For example, on July 8, 2000, the American Bar Association, during its annual convention, conducted a program co-sponsored by its Section of Dispute Resolution and the Section of Labor and Employment Law entitled "The Mediation of Discrimination Complaints: Serving the Parties' Interests or Undermining Public Policy."15

The EEOC defines mediation as an informal process in which a neutral party assists the opposing parties to reach a voluntary, negotiated resolution of the charge.16 It "gives the parties the opportunity to discuss the issues raised in the charge, clear up any misunderstandings, determine the underlying interests or concerns, find areas of agreement, and ultimately, to incorporate these ideas of agreements into resolutions."17 The actors in the mediation are the parties themselves, assisted by a trained mediator. Thus, mediation attempts to focus on the relationship of the parties, rather than on legalism.18 This becomes important if parties want to preserve their relationship, which may be destroyed or damaged by the adversarial nature of other dispute resolution mechanisms, such as litigation. Experts opine that ADR methods, such as mediation, become very important in non-discharge employment cases, where the parties want to preserve their relationship with their employer.19

Mediation has been found effective in dealing with a number of different types of disputes. It is effective not only in settling small claims,20 but also resolving a variety of different disputes including labor grievances,21 contractual terms, construction damages, personal injuries, damages to property and the environment,22 and employment discrimination under the Title VII of the Civil Rights Act.23 The advantages of mediation are many: it is less costly, it is less damaging to the relationship of the concerned parties, and it promotes a win-win solution.

According to the EEOC, the advantages of mediation are:

Mediation is an efficient process that saves time and money. Successful mediation avoids a time consuming investigation and achieves a prompt resolution of the charge. The majority of mediations are completed in one session, which usually lasts for one to five hours.
Mediation is fair. Mediators are neutral third parties who have no interest in the outcome. Their role is to help the parties resolve the charge.
Mediation is a confidential process. The sessions are not tape-recorded or transcribed. Any notes taken by the mediator during the mediation are discarded.
Settlement agreements secured during mediation do not constitute an admission by the employer of any violation of laws enforced by the EEOC.
Mediation avoids lengthy and unnecessary litigation.24

The key words used by the EEOC in describing the advantages of mediation are efficiency, fairness, confidentiality, non-admission of violation of laws, and speediness of resolution. Critics point out that mediation and other ADR methods "amount to a private justice system that does not always protect the public's interest in procedural fairness or disclosure of how disputes were resolved."25

The EEOC has addressed the public policy issue by use of a charge classification system. Charges that are identified as "A" charges usually are not selected for mediation. These charges involve cases where a reasonable case finding is highly likely or where important pattern or practice/systemic issues or other public policy concerns militate against the use of pre-investigation mediation. Where a party requests that an "A" charge be mediated, the District Director and Regional Director have the discretion to allow such mediation. However, this is the exception and not the rule for such cases.

Charges classified as "B" charges are charges where further investigation is required to make a determination concerning their merit. In general "B" cases are eligible for pre-investigation mediation. However, "B" cases that involve the Equal Pay Act or pattern or practice/systemic allegations are not eligible for pre-investigation mediation.

Intake personnel usually make the initial classification decision. Each office has a process that reviews and ensures the accuracy of its classification decisions. It should be noted that the Equal Pay Act cases, whether they are classified as "A" or "B," are not eligible for pre-investigation mediation.

B. Justice and Dispute Resolution Program Evaluation

How does one evaluate the effectiveness of a dispute resolution program? Participant feedback is one of the essential criteria used to assess a system's effectiveness and to suggest improvements to the system. Any evaluation of a dispute resolution method should include participant feedback regarding their perceptions of procedural justice (justice with regard to the process) and distributive justice (justice with regard to the outcome).

1. Procedural Justice

Procedural justice can be defined as "the perceived fairness of the process through which decisions are made."26 The theory of procedural justice posits "disputants prefer procedures that provide them with voice, control over the outcome, and fair treatment by the third party."27 Thus, parties to a dispute must first be given a fair chance to voice their concerns. Second, parties must have control over the outcome of mediation since mediation is about self-determination. Third, the mediator must be perceived as, and be, fair and neutral. Measurement of participant perception of procedural justice regarding mediation must consider whether the participants felt that they were treated with fairness by the mediator, their voice was heard, and they had control over the outcome.

Fairness is an essential element of procedural justice. It is especially crucial to any mediation program because it is a necessary ingredient to induce both participation and settlement.28 Hodges notes that the EEOC has recognized not only the importance of actual and perceived fairness in its mediation program, but also that "fairness requires adequate information, the opportunity for assistance, knowing and voluntary participation, neutrality, confidentiality, and enforceability." The EEOC ADR programs are developed according to these principles of fairness.29

As indicated above, an element of procedural justice is "knowing participation," i.e., participant understanding of the process. Research in organizational theory has shown that understanding is an important factor in employee attitudes towards organizational activities.30 Hence, understanding of the process is essential for participant satisfaction with the process and for their perception that the process was fair. Hodges states "in order to make an informed choice about whether to participate in mediation, the potential parties need information about the mediation process, statutory rights and remedies, and the advantages and disadvantages of both mediation and litigation." She also points out that both the EEOC and Administrative Conference of the United States (ACUS) recognize that ADR programs must be fair to the participants, and fairness requires that extensive information be provided to the participants about the process. It should be noted that one of the recommendations of the Task Force on Alternative Dispute Resolution in Employment, which established the "Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship," is that participants be "given access to information about both the process and the substance of the dispute."31

The "timing of mediation" and "representation" are two other important variables that affect procedural justice. Prompt scheduling of a program is considered to be an indication of effective program management. The timing of mediation is important since one of the touted advantages of mediation is that it is less time consuming than other methods of dispute resolution. Once the case is referred to mediation and if it takes place promptly (i.e., before positions harden), a settlement may be more likely."32

Fairness/procedural justice requires that there is opportunity for assistance to the participants. Representation in the form of either attorneys or other knowledgeable persons, for one or both parties, may serve to balance power.33 It is important not only to let the participants know that they can bring in representatives, but also to notify each party as to who will be representing the other party.34 There is empirical evidence to support the notion that when one party to a dispute appeared with an unanticipated representative, the other party was concerned about the fairness of the process.35

The mediator is crucial to the process of mediative decision-making. As the third party who assists the parties to a dispute, a mediator facilitates communication with the parties, helps them to focus on the real issues of the dispute, and assists them in generating options for settlement.36 Mediators, unlike arbitrators, do not mandate solutions to a dispute. Instead, they are facilitators who enable parties to reach their own agreement.37 As facilitators, it is essential that the mediators understand the nature of the dispute in question and the viewpoints of the parties to the dispute. This understanding becomes critical in clarifying the issues to the parties, which is important to promote co-operative problem solving. Mediators also serve as "a reality check, alerting parties to unrealistic expectations."38

One of the commonly included criteria in the definitions of mediation is that the mediator be neutral or impartial.39 Some researchers point out that "neutrality, as traditionally practiced, actually includes two potentially conflicting qualities: (1) impartiality, which refers to the mediator' ability to maintain an unbiased relationship with the disputants; and (2) equidistance, which involves the mediator temporarily becoming aligned with each party to encourage disclosure and assist the party in expressing the case.40 Mediators must be impartial, fair, and diligent in order to foster trust between the parties and between the mediator and the parties. They must also maintain the confidentiality of the parties.41

Participant perception of distributive justice or justice with regard to the outcome is another important element of participant satisfaction with the program. It is not surprising that participants would perceive the outcome to be more just when they received what they wanted than when they did not. However, even when the mediation does not end in a settlement, it has the chance to further the communication between the parties since it brings the parties together.

2. Distributive Justice

Distributive justice measures include participant satisfaction with the outcome of mediation and participant perceptions regarding the fairness of the outcome.42 Research has shown that participants not only differentiate between procedural justice and distributive justice, but also consider procedural justice to be more important in certain situations.43

Gordon, in his study of the issues of justice in a union-management grievance procedure, emphasized the importance of procedural justice in workplace dispute resolution.44 He argued "research on grievances will remain incomplete lacking the perspectives of employees who are themselves subject to the grievance system."45 He used a five-point Likert scale that ranged from "Very Satisfied" to "Very Dissatisfied" to survey employees' overall satisfaction with the grievance system. He found that the overall evaluation of the grievance system was significantly correlated with the measures of perceived procedural and distributive justice. He also found that the correlation was significantly higher for the procedural justice factors as opposed to the distributive justice factors. Thus, his research seemed to support the findings of Folger and Greenberg46 that the "procedures followed, rather than the outcomes obtained, have the greater influence on the overall evaluation of dispute-resolution systems."47

C. Empirical Studies of Mediation Programs

Given the fact that mediation is relatively new in the field of employment dispute resolution in the United States, it is not surprising that there have been few published studies on the evaluation of mediation programs. Employment law mediation programs sponsored by public agencies have been the subject of only two published studies: McEwen and Kochan, Lautsch, and Bendersky. Another study on mediation that deserves attention is by Brett, Barsness, and Goldberg. These studies are discussed in detail since they provide valuable insights into how researchers have evaluated the effectiveness of different mediation programs.

McEwen analyzed the EEOC pilot mediation program using exit surveys of participants.48 He reported on 267 completed mediations.49 His survey focused on the following variables: the time required to complete mediation from the filing of the charge to the close of the mediation, the duration of the sessions, the outcomes associated with the mediation, the participant satisfaction with the mediation process, the participant perceptions of the fairness of the mediation process, the participant perceptions of the mediator, and whether the participants would use the program again.

McEwen found that that the average time to complete mediation was 67 days from the filing of a charge, and that the mediation sessions averaged 3.7 hours. Regarding the outcomes of mediation, he reported that 52% of the mediations concluded with settlements and over half of these settlements provided for financial payments to the charging party. Most of the participants were satisfied with the mediation process: 66% of the charging parties and 72% of respondents expressed satisfaction with the process. Similarly, 91% of the charging parties and 93% of the respondents rated the process as fair. Regarding the mediator, 95% or more of the parties said that they trusted the mediator and indicated that they had been treated with respect during the mediation. Parties also expressed an interest in using the mediation process again. Eighty-four percent of the charging parties and 83% of the respondents indicated that they would use the mediation process again, if they had a similar problem.50

This research included a follow-up mail survey of 125 of the 267 charging parties. Of these 125, approximately 35% responded.51 After several months, they continued to have positive opinions about the mediation process. According to McEwen, one limitation of the study was the short time span covered by the analysis. Also, it was not possible to follow to completion the charges filed by control group members who did not participate in the mediation program.52

Brett, Barsness, and Goldberg studied 449 cases administered by four private sector ADR providers—the American Arbitration Association, the CPR Institute for Dispute Resolution, JAMS-Endispute, and U.S. Mediation and Arbitration Service—to measure the effectiveness of mediation.53 They used a mail survey of participants to evaluate, among other things, the participants' satisfaction with the ADR process that they used and their perceptions of the fairness of that ADR process. More specifically, participants were asked to indicate their responses to a series of questions, about the fairness of the mediator, the fairness of the process, their control of the process, their satisfaction with the process, and where appropriate, their satisfaction with the outcome, using a five-point scale (1 = very dissatisfied and 5 = very satisfied).

The results showed that the participants were satisfied with every aspect of the mediation. Several statements about the participant satisfaction with the process and the mediator were combined into a single index and this index yielded a mean score of 4.02 (out of 5) showing that participants were satisfied with the mediation process. Similarly, the participants who resolved their cases at mediation gave a high score (mean score of 4.08 out of possible 5) to the outcome of mediation. It should be noted that this study measured the elements of both procedural and distributive justice involved in mediation.

More recently, Kochan, Lautsch, and Bendersky evaluated the ADR program of the Massachusetts Commission Against Discrimination (MCAD),54 a state human rights agency. The MCAD mediation program, which is voluntary, sought to resolve disputes involving claimed violation of public law that protected individual civil rights.55 The Kochan et al. study included, inter alia, the reported results of 95 cases mediated by the Commission. Of these cases, 63% were settled.56 The study measured claimant (charging party) and respondent satisfaction with the mediation, the influence of whether the case was settled or not on the satisfaction rate, and the participants' opinions of the mediation process and the mediator's performance.57

Overall, the participants rated the performance of the mediator very highly. The study found that 95% of the charging parties and 100% of the respondents answered that the mediator explained the mediation process well and 95% of the charging parties and 96% of the respondents stated that the mediator treated the parties with respect. Eighty-five percent of the charging parties and 92% of the respondents stated that the mediator listened and 75% of the charging parties and 85% of the respondents stated that the mediator provided an opportunity to express opinions. Seventy percent of the charging parties and 88% of the respondents believed that the mediator understood the dispute.

The study also reported that 63% of the charging parties and 77% of the respondents stated that they would use the mediation program again. Fifty percent of the charging parties and 68% of the respondents were satisfied with the outcome of the mediation.58 However, only 30% of the charging parties and 35% of the respondents rated the outcome of the mediation as fair.59 Finally, the Kochan study found that respondents were more satisfied with the overall outcome of the mediation than the charging parties (50% for charging parties and 68% for respondents).60 Where the case was settled, charging parties and respondents were more likely to report that the mediation was fair.61 Only about 20% of the participants in these 95 cases were surveyed. Thus, the authors acknowledged that this was "an extremely low response rate" and that this was a "major weakness" of the study.62

It should be noted that the MCAD program is different from that at the EEOC in several ways. First, the MCAD program uses a "fee for service provision" whereby each party in the study paid a $500 administrative fee that included three hours of the neutral's time.63 After three hours, the mediator was free to charge his/her hourly rate, which was reported to have ranged from $100 - $350 per hour. In the EEOC program, mediation is free for its participants. Second, the MCAD program is administered by the American Arbitration Association and, thus, uses mediators found on AAA panels.64 The EEOC uses internal staff as mediators as well as external mediators from a wide variety of sources. Third, in the MCAD program, mediation is conducted only in those cases where an investigation found cause to believe that the law had been violated,65 whereas mediation occurs in the EEOC program before there is any investigation of the charge. Finally, under the MCAD program, the parties were required to be represented by an attorney, whereas the EEOC allows the parties to represent themselves or select any other representative of choice (i.e., accountant, spouse, wife, minister, rabbi, etc.).

Are participants who choose mediation more satisfied with the way their case is handled than those who did not? Both Kochan et al. and McEwen attempted to compare the experiences of parties who had participated in mediation with those who had remained in the traditional investigation track. Both were unable to gather the data necessary to compare the experiences of this control group with those who went to mediation.

While not a control group, McEwen surveyed charging parties who did not participate in mediation, but rather participated in an EEOC investigation. His response rate for this group was 25%, which he categorized as a "non-representative sample."66 Of this group, only 13% of the participants indicated that they were satisfied with the way their case had been handled. Where a decision was reached in the case, only 8% were satisfied with it.

Christovich and Stallworth surveyed the persons who filed suit in federal district court after the EEOC charge regarding their perceptions on receiving a fair hearing of their claim.67 The authors surveyed employment discrimination claimants whose names appeared on the federal district court docket in the U.S. District Court for the Northern District of Illinois. Eighty-two percent of the claimants reported that the overall federal district court litigation process was unfair. Eighty percent believed that the judge did not consider their side of the case and 68% reported that they believed that the judge was biased.68 This research also had some limitations due to the survey response rate, which was 25%. Also, the researchers could not validate the representativeness of these responses leaving unresolved the issue of non-response bias.69 What is clear from the McEwen and Christovich/Stallworth research is that those who use processes other than mediation do not appear to fare better than those who go to mediation.

In conclusion, the literature review shows that the measurement of procedural and distributive justice is essential to the evaluation of any mediation program. Elements of procedural justice included variables such as "knowing participation," representation, performance of the mediator, fairness of the process, and opportunity to present participant views. Elements of distributive justice included participant satisfaction with the outcomes and the fairness of the outcomes.

III. This Research

On August 18, 1999, the authors were retained by the EEOC to design a "customer satisfaction survey" of the EEOC mediation participants (EEOC Order No. 9/0900/7632/2). The survey and results discussed in this report is a product of that EEOC research contract.

The purpose of the study was to examine how the participants of the program -- charging parties and respondents -- evaluated the EEOC mediation program. Hypothesis testing was not our objective; rather, we asked specific research questions to evaluate the participant satisfaction with the program. The Participant Satisfaction Survey, the instrument that was used to collect the data, incorporated several research questions based on a comprehensive review of the literature in the field. The main research questions are the following: (1) What was the participant feedback regarding the mediation? More specifically, how did the participants view the procedural and distributive elements of the mediation program? (2) Would the parties use the program again? (3) Do other variables such as the characteristics of the charges and the characteristics of the mediation sessions affect participant satisfaction with the program?

IV. Background

This section presents a brief background of the EEOC's mission, its case backlog, its strategies to process charges in a timely manner, and its mediation program. The sub-section on the evolution of the EEOC mediation program is especially important since this study measures the participant satisfaction with this program.

A. The EEOC's Mission

Title VII of the Civil Rights Act of 1964 ("Title VII" or "the Act") prohibits workplace discrimination based on race, sex, national origin, color, or religion.70 Pursuant to Title VII, the Equal Employment Opportunity Commission ("EEOC," "Commission," or "agency") was established as the federal agency responsible for the administration and enforcement of this law. The EEOC opened its doors in July 1965.71 The EEOC investigates, conciliates, and litigates complaints of discrimination arising under the laws within its jurisdiction. This is done by 50 field offices located throughout the United States. Central to the agency's mission is the development and implementation of charge resolution programs and processes.

The EEOC investigates charges filed by individuals or initiated by a member of the EEOC. These members are referred to as Commissioners. A Chairperson is appointed from among the Commissioners. Originally, the EEOC had no power to enforce its findings. Title VII indicates that Congress intended the EEOC to quickly investigate allegations of discrimination and then to act as a conciliator between the parties to bring about a voluntary resolution of a dispute.72

In 1972, the Equal Employment Opportunity Act amended Title VII to allow the EEOC to file suit in federal court to enforce Title VII. This amendment also expanded the EEOC jurisdiction to include public and private educational institutions and state and local government. This law continued to rely primarily on the conciliation process to resolve charges that the agency investigated and found to be meritorious.73

B. The EEOC Case Backlog74

When Title VII was passed in 1964, Congress expected that the EEOC could investigate and then immediately conciliate meritorious cases to a voluntary resolution; this proved to be an unrealistic expectation. From its inception, the EEOC had a case inventory (3,000). By the 1970's, it was clear that the EEOC was overwhelmed with charges. In June of 1972, a backlog of 53,000 charges existed. By April 1977, that backlog had risen to 130,000.75 This caused the EEOC to lose credibility with the parties who appeared before the agency. It was clear that something had to be done.

C. The EEOC Strategies To Timely Process Charges

1. The Administration of Chairwoman Eleanor Holmes Norton

In May 1977, EEOC Chairwoman Eleanor Holmes Norton introduced a "rapid charge processing" program. The program was designed to expedite the processing of charges by seeking quick settlement prior to full investigation. This program relied on no-fault settlement agreements with the agency in return for payment of some money or other benefit to the charging party. This strategy resulted in the expeditious processing of many cases. Also, this strategy enabled the EEOC to expend its limited resources on "pattern and practice" and systemic litigation. These cases are high profile and often result in the recovery of large monetary settlements. From a cost - benefit perspective, such litigation probably results in a larger monetary yield.76 To the critics of the program, any charge, other than pattern and practice claims, was seen as being "for sale," i.e., subject to quick resolution, by respondent payment of what the critics considered to be a token sum of money.77 It also appeared that individual charges were not given the same attention or importance as the pattern and practice lawsuits.

In 1979, the EEOC's responsibilities were expanded to include enforcement of discrimination charges made pursuant to the Age Discrimination in Employment Act of 1967,78 the Equal Pay Act of 1963,79 and Section 501 of the Rehabilitation Act of 1973.80 Even with the significant expansion of the EEOC jurisdiction during her tenure, Chairwoman Norton's program reduced the case backlog. In FY 1981, the inventory was 49,500; this was a noteworthy accomplishment given the EEOC's increasing responsibilities.81 She left the agency in February 1981, and was later succeeded by Clarence Thomas.82

2. The Administration of Chairman Clarence Thomas

Clarence Thomas was appointed as the EEOC Chair in May 1982. He served in this position until 1990. When Thomas became Chairman, he was immediately met with a Government Accounting Office (GAO) report critical of the EEOC rapid charge-processing program. The major criticism was that meritorious cases were being settled too quickly and too cheaply while non-meritorious cases were being settled for too much money. There seemed to be little relationship between the underlying culpability of the respondent and the amount of the settlement. 83

Thomas decided it was inappropriate for the EEOC to do little or no investigation of the "garden variety" discrimination charge, while spending substantial resources on the headline-grabbing, and more financially lucrative, pattern and practice lawsuits. He believed that every person who filed a charge with the EEOC was entitled to a full investigation. Accordingly, Thomas thought the agency should move away from the claims adjuster image it had under Norton and toward that of a law enforcement agency.84

In December 1983, Thomas implemented a full investigation policy. All charges were to be fully investigated to a determination of "reasonable cause" to believe that there had been a violation of the law or a "no reasonable cause" determination. A full investigatory report was written at the end of each investigation.85 The use of personnel to fully investigate every charge resulted in litigation of fewer pattern and practice cases. When Thomas left the EEOC in 1990, the case inventory was at 41,987.86

3. The Administration of Chairman Evan J. Kemp, Jr.

Commissioner Evan J. Kemp, Jr., replaced Thomas as Chairman in March 1990. Also in 1990, President George Bush signed the Americans with Disabilities Act (ADA) into law.87 The EEOC responsibilities were further expanded to include the investigation of claims made under Title I of the newly enacted ADA. In 1991, the Civil Rights Act of 1991 (CRA) expanded the 1964 Act.88 The CRA made it more attractive to sue an employer for a violation of Title VII. Under this new law, a victim of employment discrimination was entitled to recover compensatory and punitive damages.89 Previously these monetary damages were not available and a successful litigant could obtain only backpay (less interim earnings), reinstatement or frontpay in lieu of reinstatement, and respondent payment of the employee's attorney fees and costs. Now, in addition to these remedies, a successful litigant could obtain compensatory and punitive damages. Filing of a charge with the EEOC continued to be a prerequisite to initiating a lawsuit in federal court. Thus, the EEOC again experienced a significant increase in the number of charge filings.

In addition to the rise in charges related to the ADA and the CRA of 1991, national attention to sexual harassment, focused by the Clarence Thomas - Anita Hill matter, resulted in a rise in charges of workplace sexual harassment. In 1992, 72,302 cases were filed, the largest case intake since 1985.90 The EEOC continued to adhere to the full case investigation approach developed under Chairman Thomas. As a result, the volume of unresolved charges as well as the time that it took to resolve a case continued to increase. In 1994, the time from filing of a charge to resolution averaged 328 days.91

4. The Administration of Chairman Gilbert Casellas

By October 1994, the EEOC had a new chair, Gilbert Casellas, who joined the EEOC from the Air Force, where he had served as general counsel. Casellas inherited an agency that could not move its cases in a timely fashion. By the end of FY 1994, there was a backlog of 96,945 unresolved cases.92

Chairman Casellas was faced with the challenge of reducing the backlog. He established internal task forces to address the case-handling dilemma. The resulting taskforce reports provided the information necessary to create a new process for handling incoming charges. They were classified according to "Priority Charge Handling Procedures" (PCHP), which divided charges into three categories: (1) "A" charges are charges that, based on the opinion of the EEOC charge intake personnel,93 were highly likely to result in an EEOC finding of "reasonable cause" to believe that the law had been violated, and involved pattern or practice or systemic issues, or were Equal Pay Act charges; (2) "B" charges were those with possible merit with the final finding contingent on the results of the investigation; and (3) "C" charges were those without merit on their face that should be dismissed outright.94

Concurrent with this new classification procedure, in April 1995, the EEOC voted to commit the agency to mediation as a voluntary alternative to normal charge processing. Thus, mediation became the forum for alternative dispute resolution ("ADR") that was integrated into the EEOC charge processing procedure.95 Commissioners Paul Miller and R. Gaull Silberman headed the ADR taskforce that made the recommendations. Mediation was selected largely because of the success of a pilot program that was conducted in four field offices in 1991-1992.96

In addition to the PCHP, the Casellas administration introduced a National Enforcement Plan (NEP), which was fully implemented by Fiscal Year (FY) 1997. The NEP employed a three-prong approach to address the agency's mission. The prongs were: (1) the prevention of discrimination through enhanced education, technical assistance, and outreach to the employer community, charging party advocacy groups, and other stakeholders; (2) the eradication of discrimination through investigation, conciliation, and litigation of charges with significant impact; and (3) effective caseload and inventory management, including effective use of Alternative Dispute Resolution methods, to allow the Commission to focus substantial resources on those matters having the greatest impact.97

The Priority Charge Handling Procedures allowed the EEOC to take great strides in reducing its charge backlog. In FY 1995, immediately prior to introduction of the PCHP, the agency had a backlog of 111,345 charges. At the end of FY 1997, the inventory was reduced to 64,576 charges - a reduction of over 40%.98 By FY 1998, this backlog had been reduced to 52,011 - a 53% reduction from the pre-PCHP backlog. The PCHP and the NEP of the Casellas administration resulted in the reduction of average charge resolution time, a reduction in the average age of the pending charge backlog, a reduction in the average caseload of the EEOC investigator, and in other qualitative improvements.99

5. The Administration of Chairwoman Ida Castro

On October 23, 1998, Ida L. Castro was sworn in as the Chairwoman of the EEOC. A labor and employment lawyer by training, she brought to the position a management and leadership style that emphasized results, public responsiveness, and operational efficiency. During her first year of tenure, the EEOC achieved many accomplishments, including cutting the backlog of private sector charges by 23% to a 15-year low, reducing the average charge processing time, and reforming the federal sector EEO complaint process. 100

The agency nearly tripled the number of successful charge resolutions handled through voluntary mediations to 4,833 at year-end FY 1999, up from 1,631 in FY 1998.101 Similarly, the program gained more acceptance among its target audience; FY 1999 saw an increase in the number of participants in the program. Eighty-one percent of charging parties (up from 68% the year before) and 36% of employers (up from 28%) accepted offers to mediate. The settlement success rate for mediated cases was 65%, significantly higher than the 50% success rate anticipated by the agency. The EEOC also met a key mediation goal of mediating cases in an average of 87 days.102

Chairwoman Castro promoted mediation as an excellent opportunity that offers the best of both worlds to the concerned parties since it brings the parties together and provides a forum for dialogue. She described mediation as a fair and efficient process that is not only the least costly, but also a win-win solution for parties involved.103

Chairwoman Castro proclaimed the mediation program as "one of our shining stars in terms of our accomplishments for fiscal year 1999."104 The EEOC's continued commitment to, and development of, this program is supported by several facts: (1) the EEOC's budget request for FY 2001 would support the continuation of the expanded program;105 (2) Castro's stated goal of seeking "to reverse the cuts in the mediation program and restore the overall staffing level to continue reducing the backlog of pending charges," if the EEOC's budget is increased as requested;106 and (3) her stated goal of encouraging more employers to participate in the program.

D. The Evolution of the EEOC Mediation Program

1. The Pilot Program

Beginning February 1991, the EEOC introduced an ADR pilot mediation program as a strategy to manage its burgeoning caseload. The one-year pilot tested the use of mediation in the Philadelphia, New Orleans, Houston, and Washington field offices of the EEOC.107 Statistical information was gathered regarding the successes and deficiencies in the program. At its conclusion, Professor Craig A. McEwen of Bowdon College evaluated the results. He found a high level of participant satisfaction with the pilot program. He concluded that mediation resolved a significant number of charges in a fair manner.108

2. The Mediation Program

The success of the pilot program resulted in the appointment of a mediation task force to explore the possibility of expanding the use of mediation. In 1995, the task force, under the direction of Commissioners Miller and Silberman, concluded that mediation was a viable process. The EEOC adopted a policy statement concerning ADR that included support for mediation.109 Using its experience with the pilot program, and the A-B-C classification system as the basis for selection of cases that were deemed appropriate for mediation, the ADR program evolved into its present configuration.

By October 1996, the EEOC mediation program had expanded significantly and, by the end of FY 1997, each district office had a "viable mediation program."110 For FY 1999, the EEOC budget was increased by $37 million, with $13 million specifically allocated for the mediation program.111 This increased allocation was, in part, due to the initial success of the EEOC mediation program.112 The increased funding was the result of a bipartisan effort.

3. The Structure of the Present Mediation Program

The mediation program design targets B cases113 for possible resolution. In general, at the time a charge is filed, the charging party is advised that voluntary mediation is available and is asked whether or not he/she is willing to participate. This question is asked at the time that the case is classified upon intake. Once the intake officer classifies the charge as a B, and it is confirmed that the charging party has agreed that he/she is willing to participate in mediation, the respondent is sent the charge along with a letter that offers the respondent the opportunity to participate in mediation (Exhibit 1).

Mediation is a pre-investigation dispute resolution procedure.114 The incentive for the respondent to participate is that, in addition to all of the inherent advantages of mediation, the respondent can postpone preparing a position statement and/or responding to an EEOC information request.115 Where mediation is not successful, the investigation process is reinstated and the respondent is asked to submit a position statement and otherwise cooperate with the investigation. If the respondent elects to mediate, this process is kept separate from the pending, and now suspended, investigation. Thus, a "firewall" exists that ensures that any confidential information obtained in the mediation process is not disclosed to EEOC investigators. Investigators are instructed to cease any line of inquiry with a charging party, if the party begins to discuss what occurred in mediation.

4. The EEOC Mediators

The EEOC mediation program uses EEOC staff employees as mediators as well as external mediators who are either paid pursuant to an EEOC contract or serve on a pro bono basis. The EEOC provides extensive training to all mediators.

The EEOC contract mediators include, but are not limited to, mediators from the Federal Mediation and Conciliation Service (FMCS). FMCS mediators primarily have been utilized in cases far from offices where internal EEOC mediators and private contractors are unavailable. This guarantees national coverage of charges to be mediated. The external mediators come from a wide variety of backgrounds, including professional neutrals and plaintiff and employer advocates. The EEOC mediators are "experienced and trained in mediation and in the equal employment opportunity law."116

V. Research Methodology

A. Sampling Plan and Response Rate

The purpose of this study is to report the survey results of participant satisfaction with the EEOC's mediation program. These participants are the charging party, an employee or ex-employee, and the respondent, the employer or ex-employer. The population for this research includes all participants in the EEOC mediation process that was conducted under the supervision of the 50 EEOC field offices from approximately March 1 to July 31, 2000. The comprehensive survey design means that sampling techniques were not used.

The researchers surveyed all EEOC district offices. On or about March 1, 2000, all field offices were instructed to provide the survey to all mediation participants for completion and to return these completed surveys in a sealed envelope to the researchers. The number of surveys received from each EEOC district office is set forth in Appendix A.1.

The response rate for these field offices for charging parties was at least 46.25%. The authors received a total of 2,209 surveys completed by the charging parties. Of these, 526 responses were not used in this study (while some were not filled out or only partially completed, most rejected surveys either did not indicate the case charge number or did not have a matching case number in the EEOC database) resulting in a total of 1,683 usable surveys. Thus, the effective participation rate was at least 35%.

The response rate for respondents was approximately 50%. Of the 2402 surveys received from the respondents, only 1,572 were in a usable state resulting in an effective participation rate of 33% by the respondents. The combined effective participation rate of the total sample was approximately 34%. However, our sample is representative of the overall population, as demonstrated in the "profile section" later.

The reason that we state our effective participation and response rate as "at least" figures is that the EEOC district offices did not distribute the survey to participants exactly on March 1. While we derived our figures by looking at all the EEOC mediations held in all 50 field offices between March 1 and July 31, it is clear that not all mediations were surveyed due to this staggered rollout. Also, we have not included those surveys (for mediations held by July 31) which we received after our July 31 cutoff date.

Regarding these surveys that were not used, a review of the responses indicates that they are, in all ways, similar to the results that we report below. Also, our reported response rate is reduced due to our use of numerous cross-tabulations. Finally, where parties at the site of the mediation declined to fill out surveys, a "nonresponse log" was kept. Reviews of these nonresponse logs indicate that there is no probative evidence that the reasons for nonresponse would affect our reported results.

B. Data Collection Procedures

Data collection was performed through a survey. To maximize feedback, the parties were asked to fill out the survey at the conclusion of the mediation. The surveys were given to the mediators, for distribution at the conclusion of the mediation session. A protocol addressing the handling of the surveys was carefully constructed. This protocol was distributed to all district office ADR coordinators and to all mediators in advance. According to the protocol, mediators were asked to inform the parties at the beginning of the session about the survey and to distribute the survey to the parties at the conclusion of the session; then, they had to leave the room while the surveys were being completed. Whenever possible, the participants were separated, allowing them to complete the surveys in two different rooms. After the participants received the survey, they were asked to complete it, place it in an envelope, and seal it to ensure confidentiality. Mediators were then asked to forward the surveys in the sealed envelopes to the local ADR coordinator along with the other required documentation about the mediation. The local ADR coordinators were asked to mail the surveys once a week directly to the research team. As discussed earlier, the mediators or field office ADR coordinators were also asked to indicate when participants did not fill out the survey. This was done to allow the researchers to measure the non-response bias. The complete protocol can be found in Exhibit 2.

C. The Participant Satisfaction Survey

A survey was developed to measure the satisfaction of the parties with the EEOC mediation process. This survey was based on the prior dispute resolution system research performed by Dr. McDermott (one of the authors), feedback from the EEOC National ADR coordinator Steve Ichniowski, and the literature review of the field of ADR program evaluation (section II of this report). Care was taken to ensure that we measured the EEOC's goals (where applicable) with regard to the fairness of its mediation program, which were to provide adequate information about the process, the opportunity for assistance, knowing and voluntary participation, neutrality, confidentiality, and enforceability.

The survey is a 22-item survey that included 14 five-point Likert-type responses ranging from strongly disagree (1) to strongly agree (5). A Likert scale was used because there is evidence that it is superior to other measurement formats in measuring attitudes, and its underlying factorial structure is more stable across situations and cultures.117 Of the remaining eight questions, five were primarily "yes or no" questions, two were open-ended questions, and one was a multiple-choice question. One open-ended question gave participants who did not resolve their claim a chance to explain why they thought there was no resolution of their charges. The second open-ended question gave participants the opportunity to offer suggestions for improving the mediation process. The multiple-choice question sought to identify the mediation status of the participants. A pretest established that, for most participants, the survey took about 5 minutes to complete. A copy of the survey can be found in Exhibit 3.118

Since the survey is an original measure, there are no prior reliability and validity figures. It has construct validity since its items measured the various elements of participant satisfaction with the mediation process. The survey was carefully constructed to ensure that the questions were properly worded. Mr. Steve Ichniowski, National ADR Coordinator and an ex-EEOC administrative judge, Dr. Pat McDermott, an employment law litigator, and Dr. Mollie Bowers, a professional neutral and member of the National Academy of Arbitrators, used their professional expertise to ensure the proper wording of these questions. We also used the results of the pilot study to modify questions.

D. Pilot Study

Researchers recommend pilot testing the survey to ensure that the questions are well understood by the target population.119 In order to validate the survey, the following was done: (1) a panel of experts validated the survey. The panel members included not only the research team, but also persons familiar with the EEOC mediation process;

(2) the survey was pretested on the mediation participants to determine the time required to complete the survey, whether the participants understood the questions, and whether the questions elicited the information for which they were designed. Also, the authors used the pretest to ensure that the questions did not contain any biases or other errors. Based on the feedback received from the respondents of the pilot study, modifications were made to the survey in order to improve its construct validity.

E. Data Analytical Techniques

The data was analyzed using Microsoft Excel and SPSS. The data analytical techniques of this study were primarily summary statistics, such as frequencies, percentages, and averages. We also used ANOVA and Chi-Square Tests of Independence to investigate whether participant responses varied according to variables, such as the characteristics of the mediation sessions and the nature of the charges. The appropriateness of these tests as the data analytical techniques comes from the nature of the study, which measured participant satisfaction with the mediation program.

VI. Results

The results reflect the responses provided by charging parties and respondents who were involved in the EEOC mediations from March 1 to July 31, 2000. There were 1,683 completed surveys from the charging parties and 1,572 completed surveys from the respondents. These numbers include only properly-completed questionnaires. As discussed earlier, in cases where the protocol and the instructions were not strictly followed, the questionnaires were excluded from the final sample.

The number of questionnaires received from the two participant groups represents a comprehensive survey of mediations conducted by the EEOC. The sample consists of responses from 24 of the 25 EEOC district offices (Appendix A.1). The sample size establishes this survey as the one of the largest comprehensive studies of mediation programs ever conducted.

A. Profile of the Sample

What are the characteristics of the sample? How representative is this sample when compared to the cases mediated by the EEOC? To answer these questions, we present a profile of our sample and a comparison of the profile of cases mediated by the EEOC during the March 1 - July 31 period. Information was gathered about the characteristics of the participants, the nature of their charges, and the characteristics of their mediation sessions. Regarding the participant characteristics, information was gathered about the respondents' number of employees. Regarding the nature of the participant charges, information was gathered about the statute, basis, and issue under which the cases were filed. Finally, information regarding the mediation sessions—the mediator type, the presence or use of a legal or non-legal representative, and the status of the mediation at the time the questionnaire was completed—was gathered and tabulated. Comparisons demonstrate that the profile of our sample closely resembles the profile of the EEOC database.

1. The Characteristic of the Participants: Company Size

Between March 1 and July 31, 2000, the EEOC mediated a total of 4,776 cases. The companies involved in these mediations were classified into four categories. Based on the EEOC data, 40.2% of the cases involved companies with 15 to 100 employees, 13.7% with 101 to 200 employees, 11.3% with 201 to 500 employees, and 32% with more than 500 employees. When we compare our sample to the above distribution, results show that the composition of participants is the same. The majority of the participants were employed in companies with 15 to 100 employees (40.7% of charging parties, 41.7% of respondents) and companies with more than 500 employees (30.2% and 30.3%, respectively). The rest of the participants were employed in companies with 101 to 200 employees (14.9%, 14.1%) and 201 to 500 employees (12%, 11.3%).

2. Nature of the Participant Charges

Information was also gathered regarding the nature of the participant charges. Each case is categorized based on the statute at issue (Title VII, ADEA, ADA), the basis of the charge (religion, gender, national origin, race, disability, and age), and the issue (discharge, terms and conditions of employment, harassment, sexual harassment, promotion, wages, discipline, and reasonable accommodation). It should be noted that some parties filed a charge under more than one statute, basis, or issue.

a. Statute

Title VII, ADEA, and ADA are the statutes at issue. Title VII is the statute that is applicable to the majority of charges. A review of the charges of the charging parties shows that there were 1,199 charges that pertained to Title VII, 360 to the ADEA, and 396 to the ADA. On the respondent side, 1,127 charges pertained to Title VII, 331 to the ADEA, and 379 to the ADA.

b. Basis

The bases of the majority of charges were race and gender, followed by disability, age, national origin, and religion. For the charging parties, the basis of 638 charges was race, 511 gender, 392 disability, 357 age, 149 national origin, and 42 religion. For the respondents, the basis of 593 charges was race, 482 gender, 374 disability, 327 age, 151 national origin, and 39 religion.

c. Issue

The issues were classified as discharge, terms and conditions of employment, harassment, sexual harassment, promotion, wages, discipline, and reasonable accommodation. As indicated in Table I, the majority of the charges were related to discharge and terms and conditions of employment.

Table I
Comparison of the Nature of the Charges Between Our Sample and the EEOC Database
Basis
	EEOC Mediation Cases (March 1 - July 31)	Charging Parties	Respondents
Title VII	73.8%	71.2%	71.7%
Age	19.2%	21.4%	21.1%
Disability	22.3%	23.5%	24.1%
Religion	2.4%	2.5%	2.5%
Gender	33.3%	30.4%	30.7%
National Origin	8.5%	8.9%	9.6%
Race	35.2%	37.9%	37.7%
Disability	23.1%	23.3%	23.8%
Age	19.3%	21.2%	20.8%
Issue
Discharge	46.0%	48.6%	49.6%
Terms and Conditions	20.9%	19.0%	18.4%
Harassment	19.1%	17.1%	16.8%
Sexual Harassment	12.1%	10.4%	10.6%
Promotion	10.4%	10.1%	10.0%
Wages	9.1%	9.2%	8.7%
Discipline	8.9%	9.2%	9.0%
Reasonable Accommodation	8.8%	8.6%	8.7%

The results show that there is a strong similarity between the EEOC's database and our sample with respect to statute, basis, and issue, as shown in the above table.

3. Characteristics of the Mediation Session

Information was gathered regarding the characteristics of the mediation session, such as mediator type, representation, and mediation status. Although there was comparable EEOC information regarding mediator type, there was no comparable information on the other two variables. Thus, no comparison is presented below.

a. Mediator Type

For both groups in our sample, the vast majority (78%) of cases were mediated by internal mediators, 21% were mediated by external mediators, and the rest were mediated by a combination of external and internal mediators. This profile closely resembles the EEOC's use of internal and external mediators during this period—74% of the total cases during this period were mediated by internal mediators, 25% by external mediators, and 1% by a combination of both.

b. Representation

There is a marked difference in the use of representation by the two parties. Respondents were more likely to have a representative going into the mediation. Only 41% of the charging parties were represented, whereas 58% of the respondents were represented. Fifty-eight percent of the charging parties and 40% of the respondents did not have representatives. One percent of the charging parties and two percent of the respondents did not furnish this information.

c. Mediation Status

For the majority of participants (74% of charging parties and 81% of the respondents), their mediation was completed at the time of the survey. Analysis reveals that 56% of the charging parties' and 61% of the respondents' charges have been resolved. The rest of the charging parties either responded that their cases are still ongoing (14%) or did not provide any information on the status (12%) of their mediation. Respondents were more cognizant of the status of their mediation—only 6% did not provide this information. The rest of the respondents (13%) replied that their sessions were ongoing.

In summary, the discussion above demonstrates the very strong similarity between the sample and population group with regard to the type of mediator used, the company size, the statute the cases were filed under, the basis of the charges, and the specific issue under consideration. These similarities demonstrate that the results of this study are generalizable to the population. There was only one area where differences occurred between the two databases. Differences occurred in terms of the geographic or district office distribution (Appendix A.1). Notwithstanding these differences, it is our opinion that this will not substantially affect or bias the results of this study. Statistical tests indicate that the responses of the participants are, by and large, independent of their geographic location.

B. Participant Feedback Regarding the Mediation

The survey questions regarding participant feedback of the mediation are comprised of two major areas of evaluation: procedural and distributive elements. Questions concerning procedural elements include statements about mediation preparation, comprehension of the process, voice (i.e., opportunity to present views), and the mediator's role and conduct.

Participant satisfaction with the distributive elements of mediation was measured using four questions concerning the results. More specifically, three questions were asked about participant attitudes regarding the realistic nature of the options developed during the mediation, their satisfaction with the fairness of mediation, and their satisfaction with the results. The fourth distributive question was a "yes/no" question concerning whether the participants obtained what they wanted from the mediation. With the exception of this question, all other distributive and procedural questions discussed above were measured using a Likert scale with a continuum of 1 to 5, 1 representing strong disagreement and 5 representing strong agreement.

1. Procedural Elements and Mediation

Four statements were used to measure the participants' satisfaction with the mediation process. Of these, the first two were "pre-mediation session" or "mediation preparation" statements regarding whether the participants received an adequate explanation from an EEOC representative and whether the session was scheduled promptly. The next two statements asked whether the participants understood the process and had an opportunity to present their views.

a. Explanation, Scheduling, and Voice

An analysis of the participant responses regarding their "pre-mediation" or mediation preparation experiences shows that the participants had a positive experience. Eighty-seven percent of the participants agreed with the statement that "prior to my attendance at this mediation session today, I received an adequate explanation about mediation from an EEOC representative." The mean score for the statement was 4.23. As indicated in Table II, data also show that both charging parties and respondents were in agreement regarding the statement. Eighty-eight percent of the charging parties agreed with the statement and 85% of the respondents agreed with the statement. The mean score for the charging parties was 4.24 and the respondents was 4.21, indicating that there is very little difference between the two groups regarding their attitudes on this issue.

Eighty-nine percent of the participants agreed with the statement that "the mediation was scheduled promptly." The mean score was 4.34, indicating that there was strong agreement about the prompt scheduling of mediation. Ninety-one percent of the respondents and 88% of the charging parties agreed with the statement. As shown in Chart A, the mean score was 4.39 for the respondent group and 4.28 for the charging party group. Analysis reveals that the difference in the mean scores is significant, indicating that the respondents were more satisfied than the charging parties with the prompt scheduling of mediation.

Participants also agreed with the statements regarding the mediation session. Ninety-four percent of the participants agreed with the statement that "after the mediator's introduction, I felt that I understood the mediation process." The mean score was 4.44, indicating that participants strongly agreed that they understood the process. A comparison of the two groups shows that 96% of the respondents and 92% of the charging parties agreed with the statement. Analysis reveals that the responses of the participant groups varied significantly and that the respondents (mean score of 4.53) agreed more strongly than the charging parties (mean score of 4.35) that they understood the process.

Participants also felt that they had a voice during the process. The vast majority of the participants agreed with the statement that "I (or my representative) had a full opportunity to present my views during the mediation process." Ninety-five percent of the respondents and 90% of the charging parties agreed with this statement, indicating that the opportunity to present one's views, one of the essential elements of procedural justice, was present in the EEOC mediation process. The average mean scores reveal that the respondents (4.57) felt more strongly than the charging parties (4.39) that they had an opportunity to present their views.

In summary, participant responses to this set of mediation process questions indicated strong satisfaction with this part of the mediation process for both charging parties and respondents. They rated the "pre-mediation" aspects of the process very highly. They also felt that they understood the mediation process and they or their representative had an opportunity to present their views during the session. Although both charging parties and respondents had similar attitudes regarding the mediation process, it should be noted that respondents agreed more strongly to statements concerning the prompt scheduling of mediation, understanding of mediation, and presentation of views. These findings are highlighted in Chart A and Table II. For a more detailed presentation of the data tabulations, refer to Appendix B.

Chart A: Participant Satisfaction with Procedural Elements of Mediation: Explanation, Scheduling and Voice (details in text)

Table II
Participant Satisfaction with the Explanation, Scheduling, and Voice*
Statements	Charging Parties Mean (n, %)	Respondents Mean (n, %)
Prior to my attendance at this mediation session today, I received an adequate explanation about mediation from an EEOC representative.	4.24 (1637, 88.3%)	4.21 (1516, 85.4%)
The mediation was scheduled promptly.	4.28 (1673, 87.7%)	4.39 (1559, 90.5%)
After the mediator's introduction, I felt that I understood the mediation process.	4.35 (1676, 91.6%)	4.53 (1561, 95.8%)
I (or my representative) had a full opportunity to present my views during the mediation process.	4.39 (1677, 89.8%)	4.57 (1563, 95.0%)

*Satisfaction is measured by the "mean responses" of the participants on a Likert scale (scale of 1 {strongly disagree} to 5 {strongly agree}) and by the percentage of participants who agreed or strongly agreed with the statements. The sample size (n) is also given for evaluation purposes. Figures in bold refer to statements where a statistically significant difference (evaluated at 95% confidence level) exists between the mean responses of the charging parties and respondents.

b. The Mediator

The second set of questions focused on statements regarding the mediator's performance. More specifically, participants were asked whether the mediator understood their needs, helped to clarify their needs, remained neutral in the beginning as well as throughout the process, helped to develop options for the resolution of their claim, and used procedures that were fair to them.

The majority of the participants felt that the mediator understood their needs (87%) and helped to clarify their needs (82%). Eighty-six percent of the 1,669 charging parties and 87% of the 1,552 respondents agreed that the mediator understood their needs. The mean scores of the charging parties (4.30) and the respondents (4.31) indicate that the parties' responses were identical with regard to the statement that "the mediator understood my needs." The participants also felt that "the mediator helped clarify my needs." Eighty-four percent of the charging parties and 79% of the respondents expressed either strong or very strong agreement with the above statement. Although the agreement was strong among participants in general, it was stronger among charging parties (mean of 4.25) than among respondents (mean of 4.17).

An overwhelming majority of the participants agreed with the statements regarding the neutrality of the mediator. Of the 1,674 charging parties who responded to the statement "at the beginning of the mediation, I considered the mediator to be neutral," 1,542 (92%) agreed with the statement. Similarly, 1,441 of the 1,566 respondents (92%) who answered indicated strong agreement with the statement. The mean scores of 4.44 for the charging parties and 4.49 for the respondents indicate the strength of the attitudes of participants. Participants also agreed that "the mediator remained neutral during the session." Ninety-one percent of the charging parties and 89% of the respondents agreed with the statement. An analysis of the mean scores of the participants (4.42 for the charging parties and 4.43 for the respondents) shows that the participant groups felt very strongly that the mediator remained neutral during the session.

Participants also felt that the mediator played a very useful role in the development of options for the resolution of the charge. Eighty-five percent of the charging parties and 84% of the respondents agreed with the statement that "the mediator helped the parties develop options for resolving the charge." The nearly identical mean scores of the participants (4.27 for the charging parties and 4.23 for the respondents) attest to the fact that the attitudes of both participant groups were very similar.

Participants agreed that the procedures used by the mediator were fair to them. Of the 1,668 charging parties who responded to the statement "the procedures used by the mediator in the mediation were fair to me," 1,476 (89%) expressed agreement with the fairness of the mediation procedures. Similarly, of the 1,564 respondents who answered, 1,436 (92%) expressed agreement. Analysis of the mean scores reveals that the respondents (4.44) agreed more strongly than the charging parties (4.33) regarding the fairness of the procedures used by the mediator.

Overall, as shown in Chart B and Table III, the participants were very satisfied with the role and conduct of the mediator. There were some differences between the two participant groups regarding their perceptions of mediators. A higher percentage of charging parties (84%) than respondents (79%) agreed that the mediator helped to clarify their needs. The reverse is the case regarding the participant attitudes concerning fairness of the procedures used by the mediator. Ninety-two percent of the respondents agreed with the statement, whereas 89% of the charging parties agreed.

As illustrated in this section on procedural elements, both the charging parties and respondents were very satisfied with the fairness of the process. The mean scores of both participant groups were over 4.00 on a 5-point scale, indicating their strong agreement with the process statements. Similarly, an analysis of the percentages reveals that the vast majority of participants (over 80% with one exception) either agreed or strongly agreed with the process statements. Thus, participants indicated a high level of satisfaction with the EEOC mediation process.

Participant Satisfaction with Procedural Elements of Mediation: Mediator (details in text)

Table III
Participant Satisfaction with the Mediator*
Statements	Charging Parties Mean (n, %)	Respondents Mean (n, %)
The mediator understood my needs.	4.30 (1669, 86.4%)	4.31 (1552, 86.9%)
The mediator helped clarify my needs.	4.25 (1665, 84.4%)	4.17 (1504, 79.3%)
At the beginning of the mediation, I considered the mediator to be neutral.	4.44 (1674, 92.1%)	4.49 (1566, 92.0%)
The mediator remained neutral throughout the session.	4.42 (1664, 90.7%)	4.43 (1564, 89.1%)
The mediator helped the parties develop options for resolving the charge.	4.27 (1661, 85.1%)	4.23 (1545, 83.9%)
The procedures used by the mediator in the mediation were fair to me.	4.33 (1668, 88.5%)	4.44 (1564, 91.8%)

* Satisfaction is measured by the "mean responses" of the participants on a Likert scale (scale of 1 {strongly disagree} to 5 {strongly agree}) and by the percentage of participants who agreed or strongly agreed with the statements. The sample size (n) is also given for evaluation purposes. Figures in bold refer to statements where a statistically significant difference (evaluated at 95% confidence level) exists between the mean responses of the charging parties and respondents.

2. Distributive Elements and Mediation

The third set of questions addressed the "bottom line" issues of participant satisfaction with the outcome of the mediation process. Three statements measured the distributive elements. The first was concerning the realistic nature of the solutions developed during the mediation, and the other two were regarding the participant satisfaction with the fairness of mediation and with the results of mediation.

The first statement concerning the mediation outcome was that "most of the options developed during the mediation session were realistic solutions to resolving the charge." The participants responded very similarly to this statement: 76% of the respondents and 75% of the charging parties expressed agreement with the statement. A larger percentage of participants (16% of respondents and 13% of charging parties) remained neutral regarding this statement as opposed to the other mediation process statements. The mean scores of 4.00 for the respondents and 3.95 for the charging parties indicate that they agreed upon the realistic nature of the options developed during the session and that there was very little difference in the views of the participant groups regarding this issue.

Eighty-seven percent of the respondents and 79% of the charging parties agreed with the statement that "I was satisfied with the fairness of the mediation session." An analysis of the mean scores of the two groups indicates that respondents agreed more strongly (4.31) with the statement than the charging parties (4.07).

While the vast majority of the participants (83%) were satisfied with the fairness of the mediation session, their satisfaction with the results (59%) of the mediation was more tempered. Of the 1,547 charging parties who responded to the statement "I was satisfied with the results of mediation," 55% agreed with the statement, whereas of the 1,477 respondents, 63% agreed. Thus, the respondents were more satisfied with the results of the mediation than the charging parties. The mean scores reveal that respondents agreed more strongly (mean of 3.67) than the charging parties (3.38) with the statement. Chart C and Table IV present these findings. This result should be interpreted with some caution since our sample includes participants from on-going mediations.

Participant Satisfaction with Distributive Elements of Mediation (Details in text)

Table IV
Participant Satisfaction with the Distributive Elements of Mediation*
Statements	Charging Parties Mean (n, %)	Respondents Mean (n, %)
Most of the options developed during the mediation session were realistic solutions to resolving the charge.	3.95 (1648, 75.2%)	4.00 (1519, 75.6%)
I was satisfied with the fairness of the mediation session.	4.07 (1648, 78.9%)	4.31 (1559, 86.9%)
I was satisfied with the results of the mediation.	3.38 (1547, 54.8%)	3.67 (1477, 62.6%)

The survey also sought to measure whether the participants obtained what they wanted from mediation. This is a strong distributive measure. The participants were asked whether they knew, before going into mediation, what they wanted from mediation. If they stated that they did, then they were also asked whether they obtained what they wanted.120 Of the 79% of the charging parties who indicated that they knew what they wanted,121 only 41% stated that they obtained what they wanted. Of the 83% of the respondents who knew what they wanted going into the mediation, 57% stated that they obtained what they wanted. Charts D and E depict these results.

Charging Parties Expectations Going Into Mediation (Details in text)

Respondents Expectation Going Into Mediation (details in text)

Another distributive justice question targeted those participants whose disputes did not get resolved during mediation. As indicated earlier, 26% of the charging parties and 19% of the respondents did not resolve their claims. They were asked whether progress was made in mediation toward the resolution of their claim. As shown in Table V, of the 488 charging parties who responded, 29% agreed that progress was made. Similarly, 28% of the 486 respondents agreed with the statement. The mean scores of 2.60 for the charging parties and 2.72 for the respondents indicate that the respondents agreed more strongly than the charging parties that progress was made in mediation.

Table V
Responses of Participants Whose Claims Were Not Resolved in Mediation Regarding Whether Progress was Made Toward Resolution
Participant Group	Total Responses	Mean Rating	Strongly Disagree/ Disagree	Neither Agree nor Disagree	Agree/Strongly Agree
Charging Parties	488	2.60	48.6%	22.1%	29.3%
Respondents	486	2.72	41.6%	30.9%	27.6%

In summary, the analysis of participant responses shows that the participants were satisfied with both procedural and distributive elements of mediation. The participants were more satisfied with the procedural elements than with the distributive elements. Regarding the procedural elements, participants expressed the highest degree of satisfaction with the neutrality of the mediator, the opportunity to present their views, and their understanding of the process. Concerning the distributive elements, participants were more satisfied with the fairness of mediation and with the realistic nature of the options developed during the mediation than they were with the results of mediation. These findings are summarized in Table VI.

Table VI
Participant Satisfaction with the Procedural and Distributive Elements of Mediation*
Statements	Charging Parties Mean (n, %)	Respondents Mean (n, %)
Procedural Elements
Explanation, Scheduling, and Voice
Prior to my attendance at this mediation session today, I received an adequate explanation about mediation from an EEOC representative.	4.24 (1637, 88.3%)	4.21 (1516, 85.4%)
The mediation was scheduled promptly.	4.28 (1673, 87.7%)	4.39 (1559, 90.5%)
After the mediator's introduction, I felt that I understood the mediation process.	4.35 (1676, 91.6%)	4.53 (1561, 95.8%)
I (or my representative) had a full opportunity to present my views during the mediation process.	4.39 (1677, 89.8%)	4.57 (1563, 95.0%)
Mediator
The mediator understood my needs.	4.30 (1669, 86.4%)	4.31 (1552, 86.9%)
The mediator helped clarify my needs.	4.25 (1665, 84.4%)	4.17 (1504, 79.3%)
At the beginning of the mediation, I considered the mediator to be neutral.	4.44 (1674, 92.1%)	4.49 (1566, 92.0%)
The mediator remained neutral throughout the session.	4.42 (1664, 90.7%)	4.43 (1564, 89.1%)
The mediator helped the parties develop options for resolving the charge.	4.27 (1661, 85.1%)	4.23 (1545, 83.9%)
The procedures used by the mediator in the mediation were fair to me.	4.33 (1668, 88.5%)	4.44 (1564, 91.8%)
Distributive Elements
Most of the options developed during the mediation session were realistic solutions to resolving the charge.	3.95 (1648, 75.2%)	4.00 (1519, 75.6%)
I was satisfied with the fairness of the mediation session.	4.07 (1648, 78.9%)	4.31 (1559, 86.9%)
I was satisfied with the results of the mediation.	3.38 (1547, 54.8%)	3.67 (1477, 62.6%)

C. The Influence of Other Variables on Participant Satisfaction

Were participants who had representation more satisfied with mediation than those who had none? Did the mediation status affect participant satisfaction with mediation? Did the company size matter? Did participant responses vary according to the statute, basis, or issue? We have analyzed participant responses based on the following eight variables: company size, mediation statute, basis of charge, issue, mediator type, representation, mediation status, and mediation result. We have presented summary tables of data tabulations in the appropriate subsections of this section. For detailed data tabulation tables, refer to Appendix B.

1. Participant Responses and Company Size

The participants of this research came from organizations of different sizes. We divided the participants into four groups based on the size of their companies and analyzed their responses to see if they varied according to company size. The first group comprised of participants from organizations that had 15 to 100 employees; the second group came from companies that had 101 to 200 employees; the third group from companies that had 201 to 500; and the last from organizations that had over 500 employees. Our analysis found only one significant difference based on company size. Among the charging parties, members of the fourth group (more than 500 employees) rated the statement regarding the development of realistic options significantly lower than the other groups. Among both participant groups, there were no other significant trends or patterns related to organization size. These results are presented in Tables VII and VIII.

Table VII
Charging Parties' Satisfaction Based on Company Size*
Statements	15 to 100 (Group 1)	101-200 (Group II)	201 to 500 (Group III)	More than 500 (Group IV)
Procedural Elements
Explanation, Scheduling, and Voice
Adequate explanation	4.25 (664, 89.0%)	4.22 (245, 87.3%)	4.27 (192, 88.5%)	4.22 (499, 87.2%)
Prompt scheduling	4.31 (664, 89.0%)	4.21 (251, 84.9%)	4.37 (200, 89.0%)	4.26 (504, 87.1%)
Understood the process	4.38 (684, 92.4%)	4.32 (250, 90.8%)	4.39 (199, 92.0%)	4.29 (507, 90.3%)
Opportunity to present views	4.40 (684, 90.2%)	4.34 (251, 88.0%)	4.36 (201, 88.1%)	4.39 (506, 90.5%)
Mediator
Mediator understood needs	4.33 (683, 87.0%)	4.25 (250, 85.6%)	4.36 (198, 88.4%)	4.25 (502, 85.1%)
Mediator helped clarify needs	4.28 (680, 85.4%)	4.20 (250, 82.4%)	4.30 (200, 85.0%)	4.24 (498, 84.1%)
Mediator neutral in the beginning	4.46 (682, 92.2%)	4.43 (249, 93.2%)	4.48 (201, 92.0%)	4.40 (505, 91.5%)
Mediator remained neutral	4.43 (680, 91.0%)	4.43 (244, 91.0%)	4.43 (201, 89.1%)	4.39 (502, 91.0%)
Mediator helped develop options	4.32 (677, 85.8%)	4.26 (247, 85.4%)	4.27 (200, 86.0%)	4.20 (501, 83.4%)
Mediator used fair procedures	4.36 (681, 89.3%)	4.29 (250, 88.4%)	4.34 (199, 87.9%)	4.30 (503, 87.5%)
Distributive Elements
Development of realistic options	4.03 (678, 77.6%)	3.95 (245, 74.3%)	4.04 (196, 77.0%)	3.83 (493, 71.6%)
Satisfaction with the fairness of the session	4.11 (673, 80.7%)	4.08 (247, 77.7%)	4.04 (194, 76.3%)	4.04 (497, 78.5%)
Satisfaction with the results	3.45 (631, 56.7%)	3.33 (235, 54.0%)	3.42 (184, 54.9%)	3.30 (463, 52.3%)

Table VIII
Respondents' Satisfaction Based on Company Size*
Statements	15 to 100 (Group 1)	101 to 200 (Group II)	201 to 500 (Group III)	More than 500 (Group IV)
Procedural Elements
Explanation, Scheduling, & Voice
Adequate explanation	4.17 (635, 84.1%)	4.20 (215, 85.6%)	4.30 (174, 89.1%)	4.25 (453, 86.3%)
Prompt scheduling	4.37 (652, 90.3%)	4.37 (222, 88.7%)	4.44 (177, 93.2%)	4.41 (471, 90.4%)
Understood the process	4.52 (652, 95.9%)	4.50 (221, 94.6%)	4.57 (177, 98.3%)	4.54 (472, 95.6%)
Opportunity to present views	4.58 (655, 94.5%)	4.52 (221, 95.0%)	4.58 (176, 96.0%)	4.57 (472, 95.1%)
Mediator
Mediator understood needs	4.30 (649, 87.1%)	4.32 (221, 87.8%)	4.33 (177, 85.9%)	4.30 (467, 86.9%)
Mediator helped clarify needs	4.18 (632, 80.2%)	4.15 (210, 76.2%)	4.18 (170, 77.6%)	4.17 (457, 80.3%)
Mediator neutral in the beginning	4.47 (654, 91.6%)	4.52 (222, 92.3%)	4.53 (177, 93.2%)	4.48 (474, 92.0%)
Mediator remained neutral	4.42 (655, 89.0%)	4.43 (220, 89.5%)	4.41 (177, 89.3%)	4.45 (473, 88.8%)
Mediator helped develop options	4.22 (647, 84.2%)	4.20 (217, 81.6%)	4.25 (173, 83.8%)	4.24 (470, 84.3%)
Mediator used fair procedures	4.42 (654, 90.8%)	4.45 (220, 92.7%)	4.50 (177, 94.9%)	4.43 (474, 91.4%)
Distributive Elements
Development of realistic options	3.96 (640, 75.6%)	4.00 (219, 75.3%)	4.05 (166, 79.5%)	4.02 (456, 74.3%)
Satisfaction with the fairness of the session	4.28 (653, 84.5%)	4.29 (221, 87.8%)	4.36 (176, 87.5%)	4.35 (470, 88.9%)
Satisfaction with the results	3.61 (619, 60.9%)	3.66 (214, 63.1%)	3.81 (165, 66.7%)	3.69 (442, 62.9%)

2. Participant Responses and the Nature of the Charges

Participant responses were analyzed according to the applicable statute, basis, or issue involved in a charge. Since between-group (charging party vs. respondent) comparisons are more meaningful in this evaluation to see whether the nature of charges affected the parties, the major focus here will be on between-group comparisons.