Remarks of Robert Carr, Society for Human Resource Management

The U.S. Equal Employment Opportunity Commission

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

Chairwoman Dominguez, Commissioners, thank you for this invitation to comment at this meeting on the Equal Employment Opportunity Commission's (EEOC or Commission) mediation program. I am Robert Carr, Vice President of Human Resources and Strategic Planning for the Society for Human Resource Management (SHRM or the Society). Prior to joining SHRM, I was principal of Carr & Associates, LLC, a law firm specializing in a broad spectrum of employment issues, including employee relations/EEO, executive compensation, mediation and arbitration, and diversity management for clients ranging in employee size from very small to very large. During my career, I have also served in a variety of senior human resource capacities for nonprofit, for-profit and governmental entities.

Today, I come before you on behalf of the Society the world's largest association devoted to human resource management. Representing more than 175,000 individual members, the Society serves the needs of HR professionals by providing the most essential and comprehensive resources available. As an influential voice, SHRM also advances the human resource profession to ensure that HR is recognized as an essential partner in developing and executing organizational strategy.

I. INTRODUCTION

The Society is pleased to discuss the EEOC's mediation program. SHRM members represent organizations of every size across the United States and abroad. Today, I will focus on our members' experiences with mediation, particularly, those members who represent or work with small to mid-size organizations. My comments include examples from SHRM members.

As human resource professionals, our members are especially interested in the EEOC's mediation program as they stand on the front line of many, if not all, employment disputes that arise in the workplace. While these disputes range from simple misunderstandings to very serious allegations, all require prompt attention and an appropriate response from the human resource function to resolve them in a fair and equitable manner on the basis of employer policies and practices, federal and state employment laws, and business principles. Although decisions reached in employment disputes are based on sound legal policies and tenets, the decisions unfortunately can be the impetus for employment law claims. Fortunately, the EEOC's mediation program can provide employers and employees an opportunity to resolve employment disputes without embarking on expensive, aggressive, and lengthy litigation.

II. BENEFITS OF MEDIATION

A. Human Resource Professionals Play Active Rolls

A number of SHRM members have participated in EEOC-sponsored mediation. In fact, SHRM's Information Center, which handles more then 80,000 calls from SHRM members seeking HR-related information, regularly receives calls regarding the use of mediation to resolve workplace disputes. The calls indicate that SHRM members understand the benefits of the EEOC mediation program and, in fact, play active roles in the mediation process. One of the many benefits that mediation holds is that it has an informal structure it does not require legal representation for either the employer or employee in the process, and it is an activity that can be handled by human resource professionals from the organization. As a result of this structure, employment disputes handled through mediation are often resolved collaboratively and at less expense, a true benefit for small business.

Open Dialogue

Another advantage of mediation is that it allows the parties to converse openly and freely about the workplace dispute in a confidential setting. One SHRM member, an attorney who works with human resource professionals, commented recently that he has never had a client refuse mediation and noted that mediation often provides some early discovery about the facts and issues in the dispute for both employers and employees. As a result, he noted that it is especially well suited for small businesses and their employees, because many small businesses are simply "one lawsuit away from bankruptcy." Mediation enables small businesses to manage their employee disputes more efficiently because the parties are able to resolve the dispute without the expense of attorneys, courts, and the legal process.

Facilitates Settlements

Mediation is an excellent opportunity for parties of an employment dispute to come together to discuss their positions in a non-adversarial setting. The use of a neutral third party also helps the parties to resolve their differences and to facilitate a settlement. Because of the informality, parties to the mediation can explore a variety of case conclusions that litigation often does not offer. For instance, neutral letters of references, access to outplacement services, and the continuation of employer-provided health care are but a few examples of case conclusions that have been derived through mediation that may not have been possible through the litigation process.

Employer Outreach

SHRM members have generally found EEOC mediations to be fair and efficient, and agree that mediation is a helpful tool in resolving outstanding issues. This sense of fairness and efficiency in the mediation process has been seen as especially strong in regions where the EEOC has taken steps to reach out and work with the HR community. One member was especially complimentary about the efforts of the regional office in Detroit which does a tremendous amount of outreach and education with the employer community, including a significant amount of public speaking to interested groups. The member commented that this outreach has helped to create greater trust and confidence in the local EEOC office in general and the mediation process specifically. According to another SHRM member, a successful outreach effort by the EEOC to employer groups is also occurring in Texas. In this situation, a committee of local employers provided feedback on the mediation program and recommended ways to make employers more aware of the availability and the benefits of the program. The EEOC incorporated these recommendations into the mediation process and as a result, increased employer participation in the mediation program. SHRM suggests that the EEOC mediation program could be strengthened if all EEOC offices across the country were to take a structured, proactive approach and reach out to the HR community, similar to what has occurred in the Detroit and Texas areas.

III. SUGGESTIONS FOR IMPROVEMENT

SHRM agrees that mediation benefits all parties to an employment law claim and recommends that the EEOC take steps to further enhance the program. One frequent concern expressed by SHRM members is whether the EEOC can remain impartial during the mediation process and not assume that discrimination has occurred. Another concern of members is that EEOC mediators place too strong an emphasis on monetary damages. This concern is especially paramount in situations in which an EEOC employee serves as the mediator in the case as opposed to a non-EEOC employee. SHRM fully appreciates the EEOC's strong interest in proactive prevention as well as strategic enforcement and believes that the Commission is making great strides in these objectives by partnering with employers and human resource professionals. However, SHRM believes even more can be done and welcomes the opportunity to work with the Commission to explore ways in which the EEOC can become an even stronger partner with human resource professionals to publicize the availability, impartiality, and benefits of participating in the EEOC-sponsored mediation programs for employers and employees alike.

Outside Mediators

One way to strengthen the EEOC's mediation process is to make greater use of mediators from outside the EEOC. While SHRM realizes that there are cost implications in this approach, this step would improve the perception of the impartiality of the mediation program as well as increase its utilization by employers and employees. SHRM recommends that human resource professionals skilled in facilitating workplace disputes could be trained as mediators to help with the EEOC program. A neutral third party with a human resource background will certainly help bring the settlement process to completion in a fair and expeditious manner. Additionally, human resource professionals are aware of the laws and regulations covering discrimination in the workplace which could further enhance the mediation process.

Mediators Must be Intermediaries

The EEOC uses facilitative mediation. While SHRM agrees that this is an effective way to mediate claims, settlements might increase should the EEOC mediators do more than simple facilitation. Facilitation mediation focuses on a mediator, or neutral third-party, whose job is to facilitate a resolution of the charge by the parties themselves. Good mediators should be able to think outside the box and bring personal insight to the process. They need to let both employees and employers know the likelihood of having a favorable outcome in the investigation and they need to do more than offer an employer a monetary amount to bring closure. It is especially important for parties to understand their likelihood of obtaining a favorable settlement.

C. Mediation should be Strongly Encouraged

EEOC-sponsored mediation currently requires that both sides agree to mediate a case prior to going to court. SHRM believes the EEOC mediation program would be more effective if mediation was more strongly encouraged prior to litigation. One suggestion is to expand the mediation program to cover post- probable cause conciliations and tie the conciliation with mediation techniques. SHRM believes this will increase the number of pre-litigation resolutions.

D. Fair Process Is Necessary

Most aspects of the mediation program are well developed; however, SHRM members have expressed dissatisfaction with some of the program's procedural elements. SHRM suggests that rules and procedures be put in place to protect parties from tactics that prolong the process and create unfair disadvantage to one party or the other.

IV. CONCLUSION

SHRM appreciates the opportunity to submit this testimony and would be happy to provide you with additional information or clarification of our concerns.

This page was last modified on December 2, 2003.

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