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Remarks of Yvonne Gloria-Johnson, ADR Coordinator Phoenix District Office

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

Looking Ahead - Charting the Future

Good afternoon Chair Dominguez, Vice Chair Earp, Commissioners Miller, Silverman, and Ishimaru, distinguished guests and members of the audience. I am honored to be here today representing my colleagues to speak to you about the EEOC Mediation program.

My name is Yvonne Gloria-Johnson and I am the ADR Coordinator in the Phoenix District Office. I have held that position since October 1996 and since that time I have mediated over 200 employment discrimination charges and spoken to hundreds more employers and charging parties about the benefits of the EEOC mediation program.

I have been asked to discuss with you today several aspects of our mediation program. I will describe some of the innovative approaches my colleagues and I have used in our outreach and training programs. I will share with you some of the mediated settlements reached through our mediation program. I will also describe what coordinators see as the benefits of mediation for both charging parties and employers. At the same time, my comments will address some of the concerns cited by employers for not mediating charges filed with the EEOC that we heard Professor McDermott discuss this morning.

ADR Coordinators believe that education and outreach to promote the EEOC mediation program is tremendously important to the success of our program. Over the years we have developed informative and interactive programs designed to educate employers about the advantages of mediation. Mock mediations are frequently used to demonstrate what occurs during a mediation conference. Other successful programs use panels of contract mediators, and employer and charging party representatives who mediate regularly to answer questions and to address concerns employers have about mediation. Highly interactive programs involve participants role playing the mediation of an actual charge of discrimination. We are all regular speakers at meetings and conferences sponsored by SHRM and other employer organizations; at state bar conferences; at events sponsored by mediation professional organizations located in our respective states, and at Technical Assistance Program seminars.

The information contained in Professor McDermott's study confirms what we coordinators and mediators hear everyday when we speak to employers who decline our invitations to mediate - the charge has no merit, a position statement will result in a dismissal or the belief that any mediated settlement must include paying the charging party. While a small number of these employers may be persuaded to reconsider their decision, as Professor McDermott's study shows, the vast majority of employers are familiar with the process. In fact, many have participated in the mediation of other charges and tell us that their decision to not mediate has very little to do with the quality of our program.

Many settlements can and have been reached with non-traditional, creative solutions that meet the needs and interests of both parties. While many mediated settlements involve monetary benefits, a substantial number result in non-traditional resolutions. Let me give you some examples of mediated settlements from our offices throughout the country:(1)

A complaint concerning a hearing impaired employee who was denied telephone equipment because the employer assumed special equipment would be costly was resolved after the parties agreed to experiment during the mediation with the speaker function on the inexpensive basic telephone located in the mediation conference room and found it to be adequate. The employer agreed to provide a similar piece of equipment.

An age-based discharge case against a computer equipment company was resolved by providing charging party with used computer equipment, changing personnel records to reflect voluntary resignation and neutral references to prospective employers.

A charging party with a progressive disability was allowed to apply for disability insurance available only to higher level employees, provided charging party pay for the premiums.

Another discharge case against a recreation company was resolved with a letter of apology, certificate of appreciation for long service and complimentary use of their facilities for one year.

Another resolution involved the creation of a diversity council that promotes better understanding among a very diverse group of employees by having discussions about disparate treatment and mis-perceptions.

After learning during the first mediation session about many apparently unfounded disciplinary actions being issued, an employer returned to a second mediation session and agreed to void all unsupported disciplinary actions, and instituted a third party review of all future disciplinary actions and performance evaluations.

During the course of a mediation, the charging party revealed that she had been so emotionally distraught by the charge and events surrounding her discharge, that she had postponed her wedding until the charge was resolved. This matter was settled when the employer who is in the travel business agreed to provide complimentary transportation and accommodations for the charging party's honeymoon.

Another charge was resolved with the promotion of charging party and the creation of a mentoring committee available to all employees that promotes educational opportunities, and provides information about skills and training necessary for promotion to other positions.

Another charge was resolved when the charging party and respondent toured a civil rights museum together.

Other types of non-traditional solutions that are frequently found in mediated settlements include: verbal and written apologies, expungement of personnel files, terminations changed to voluntary resignations, shift or other schedule changes, training, mentoring, job coaching, outplacement assistance, agreements to take disciplinary actions against other employees or managers, agreement to not challenge unemployment claims, letters of recommendation, transfers to a different job, facility, department or supervisor.

While it is true that most charging parties who agree to participate in mediation have an expectation that any settlement they reach will include payment of money, it is also true that in the vast majority of settlements reached after a mediation conference, the final agreements do not contain the terms originally requested by the charging party or those first offered by the employer. Our records show that over the past few years approximately 50% of all mediated resolutions included non-monetary benefits and 13 - 20% of all mediated charges resolved based solely on non-monetary benefits. Some employers who do include a monetary benefit to the charging party consider it a business decision and not as an indication that there is any merit to the charge.

The no cost or low cost solutions possible through mediation are limitless. Identifying those creative solutions that meet the interests and needs of all the parties requires a skilled mediator to keep the parties focused on finding solutions rather than finding fault and a willingness on the part of mediation participants to be persistent and patient, to be flexible and to think outside the box.

While some employers say they want to send a message to their employees that they will not mediate charges of discrimination, there are many employers who want to give a different message: we will listen and we will attempt to work out a resolution that works for everyone. One employer mediates every charge filed against her organization and uses it as a training opportunity for her management staff. She requires the managers involved in the situation to attend the mediation, not to dispute what the charging party says, but rather to learn how they could have handled the situation better, thus improving the workplace. Both charging parties and employers tell us that the mediation conference improved or opened the lines of communication between the charging party and management. Charging parties sometimes tell us they have a better understanding of why their employer took the actions that resulted in the underlying charge. Occasionally, employers will share confidential personnel information with a charging party demonstrating a high degree of trust in the process and gaining the respect and trust of the charging party. Charging parties often tell us that the mediation conference was the first opportunity they had to tell their story and to really be heard. They also believe that the resolutions reached, even if not including everything they wanted, were satisfactory and more importantly helped them move on with their lives. Our mediation participant feedback continues to mirror the results of the first McDermott study, that both parties would use our program again if offered.

Employers who decline mediation miss the opportunity to learn why a current or former employee believed they had to go to a federal agency to get help. It is an opportunity to correct actual or perceived problems and may prevent the filing of additional charges. A dismissal does not necessarily mean the conflict is over. If the charging party is still employed, their work performance or conduct will surely be affected, not to mention the co-workers and supervisors who are still living every day with an unresolved situation. A former employee is not likely to speak kindly about a company who they believe treated them badly and wouldn't try to work out their differences in an informal and confidential setting. From our perspective, an employer has nothing to lose by trying to resolve a charge through mediation.

In conclusion, I have been with the EEOC for nearly 35 years and have seen many different charge processing procedures put into place, all well intended, but none have been as overwhelmingly successful as the mediation program - it gives both sides an opportunity to exchange information in a non-adversarial setting facilitated by a trained and impartial mediator. It is a fair, efficient, voluntary and confidential process where the parties determine the outcome. Thank you.

Footnotes

1. Examples have been sanitized to maintain the confidentiality of mediation participants.

This page was last modified on December 2, 2003.