| U.S. Equal Employment Opportunity Commission

Meeting of December 2, 2003, Washington, D.C. - EEOC Mediation Program and the Workplace Benefits of Mediation - Transcript

The U.S. Equal Employment Opportunity Commission

Meeting of December 2, 2003, Washington, D.C.
EEOC Mediation Program and the Workplace Benefits of Mediation

PRESENT:: CARI M. DOMINGUEZ, Chair
NAOMI C. EARP, Vice Chair
PAUL STEVEN MILLER, Commissioner
LESLIE E. SILVERMAN, Commissioner
STUART J. ISHIMARU, Commissioner
ERIC DREIBAND, General Counsel
PEGGY MASTRIOIANNI, Associate Legal Counsel
BERNADETTE B. WILSON, Senior Program Analyst.

PROCEEDINGS

We will now come to order. Good morning. On behalf of my fellow Commissioners, it's a great personal privilege for me to welcome all of you to this very important meeting, a meeting on mediation. I am glad to see that there is so much interest in this topic.

We have a number of special guests this morning that include our colleagues from the Federal Mediation and Conciliation Service. We are honored to have with us the Chief of Staff, Chad Turner, and Alternative Dispute Resolution Submission Coordinator, Rich Jacaloni. Where are they? Welcome, welcome. Additionally, Mr. Jacaloni brought with him a class of 25 FMCS mediators who are observing in closed circuit television in the viewing room. We're delighted to have all of you here.

A warm greeting to all of this morning's panel members who have taken time from their very busy schedules to join us. Each panelist will be introduced in turn. We are very appreciative of your joining us this morning.

I also need to take a moment up front to express the Commission's appreciation for our first panelist of the day, Paula Choate, who serves as Director of our Headquarters Based Field Coordination Programs Division in the Office of Field Programs. Her hard work and devotion as well as that of her team to our mediation program no doubt has been a key contributor to the mediation's successful results.

One of the things is the timely scheduling of a two-day conference that is taking place here in Washington for all of EEOC's alternative dispute resolution coordinators who are here exchanging experiences and ideas. It's a golden opportunity not only to do that but also to be part of this forum.

So I want to recognize our ADR Coordinators from the district offices across the nation as well as from our Washington Field Office who are here. Welcome. Thank you for being here. I also want to thank them for their hard work. They are the ones that are in the trenches day in and day out. It's really important that we hear them and recognize their hard work.

I also want to take an opportunity to introduce our newest Commissioner, Stuart Ishimaru. Commissioner Ishimaru was just sworn in two weeks ago so this is his very first meeting. We're delighted to now have a full compliment of Commissioners, the first time in seven years. Not only do we have a full compliment of Commissioners, we have a General Counsel.

So this is almost unheard of to have the whole team in place. I'm just delighted that the time has arrived to have all the resources and the expertise that the Commission needs to continue to carry on with its important work in the presence of our fellow Commissioners and General Counsel. At this point, I am going to ask Bernadette Wilson to announce any notation votes that have taken place since our last Commissioner meeting.

Ms. Wilson.

MS. WILSON: Good morning, Madam Chair, Madam Vice Chair, Commissioners, and welcome to EEOC Commissioner Ishimaru. I am Bernadette Wilson from the Executive Secretariat. During the period September 5, 2003, through November 30, 2003, the Commission acted on 31 items by notation vote. Madam Chair, I move that the list of items approved by notation vote since the last meeting be entered into the record as if read in its entirety.

CHAIR DOMINGUEZ: Is there a second?

PARTICIPANT: Second.

MS. WILSON: Madam Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting.

CHAIR DOMINGUEZ: We need to vote first.

MS. WILSON: Okay, I'm sorry.

CHAIR DOMINGUEZ: Is there any discussion?

I hear no discussion.

All those in favor say aye.

(Chorus of ayes.)

CHAIR DOMINGUEZ: Opposed?

(No response.)

CHAIR DOMINGUEZ: The ayes have it and the motion is carried.

MS. WILSON: Now Madam Chair it's appropriate at this time to have a motion to close a portion of the next Commission meeting.

CHAIR DOMINGUEZ: Do I have a motion?

PARTICIPANT: So moved.

CHAIR DOMINGUEZ: Second?

PARTICIPANT: Second.

CHAIR DOMINGUEZ: All in favor?

(Chorus of ayes.)

CHAIR DOMINGUEZ: Opposed?

(No response.)

CHAIR DOMINGUEZ: The ayes have it and the motion is carried. Thank you, Ms. Wilson. As the Commission continues to receive over 80,000 charges annually of employment discrimination, our mission continues to be affected by a continuously changing work environment. In order to best meet the needs of the EEOC stakeholders, in August of 2001, I implemented a Five Point Plan placing priority on coordination, innovation, and results.

The centerpiece of the plan is the goal of expanding and promoting mediation as a form of alternative dispute resolution. For more than a decade now, EEOC has experimented with mediation as a means of resolving workplace disputes to the satisfaction of all involved parties. In fact, Commissioner Miller was a co-chair of the national task force charged with developing the Commission's National Mediation Program. We know that he will have some thoughts and perspectives to share with us this morning on that.

Over the years, EEOC has observed time and again that mediation offers advantages over traditional enforcement and litigation activities and strategies in efficiency, relationships, and outcomes. Mediation is a great partner to litigation. As such, it is the linking pin for the current Commission's remaining four imperatives which are Proactive Prevention, Proficient Resolution, Strategic Enforcement and Litigation, and EEOC as a model workplace.

The EEOC's mediation program is one of the largest employment-related mediation programs of its kind in the country conducting more than 11,500 mediations each year and it continues to grow. In FY 2003, nearly 8,000 charges filed against private sector and state and local government employees were successfully resolved through mediation. We also made great headway in encouraging federal government agencies to use ADR more often. And here at the Commission, we launched our own internal resolve program for EEOC employees which is already yielding encouraging results.

Commissioner Leslie Silverman has made the National Mediation Program one of her top priorities spearheading the Commission's efforts to learn as much as possible about the potential benefits of mediation, about the factors influencing decisions to participate in mediation, best practices, and emerging mediation strategies. This meeting is a direct result of her hard work, her focus, and her energy to make this program the best that it can possibly be. And I want to publicly thank her and acknowledge her very hard work on behalf of the Commission and her leadership on this front.

COMMISSIONER SILVERMAN:

Thank you.

CHAIR DOMINGUEZ: On that note, I am going to be proceeding a little differently than I normally would. Following opening remarks, I am going to turn the agenda over to Commissioner Silverman for her to lead the rest of the proceedings. Madam Vice Chair.

VICE CHAIR EARP:

Thank you. Good morning everyone. First of all, I want to thank you, Madam Chair, for scheduling this meeting. Second, I want to thank you, our guests, for being here with a special thanks to our ADR coordinators who have flown in from around the country. Last but not least, I want to thank Commissioner Silverman for her leadership on this matter. I am so impressed with here leadership that I have relinquished my chair for her today and trust that I will not need a mediator to get it back from her.

(Laughter.)

VICE CHAIR EARP:

I hope today's discussion will be beneficial to our stakeholders as well as to our staff. George Herbert, a Seventeenth Century English poet, once said that "A lean compromise is better than a fat lawsuit." And it occurs to me that if that was true in Seventeenth Century England when life was relatively simple then how much more is compromise important today and how much better is compromise today in our speeded up, Internet, email, non-face-to-face world?

I have been a devotee of ADR and mediation for some years. And as I'm sure you will hear this morning, mediation allows the parties to quickly and less expensively resolve disputes. But that efficiency is not my main reason for being a supporter of mediation. I am primarily supportive of this tool because it allows the parties to not only be empowered but to actually sit face-to-face and begin the process of working through a problem.

In other words, it facilitates communication which is something very essential in an environment as complex as ours. I want to thank you all again for being here. And I look forward to what our panelists have as recommendations on how we can move into the future. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Madam Vice Chair. Commissioner Miller.

COMMISSIONER MILLER:

Thank you, Madam Chair, Vice Chair Earp, Commissioners Silverman and Ishimaru, invited guests, ladies and gentlemen. I especially want to welcome our EEOC ADR coordinators who I had the privilege of spending a little bit of time last night with in a spirited conversation about our program, learning all sorts of things about the ADR program from the ground.

I am really pleased to join my colleagues, first of all, and all EEOC employees in welcoming Commissioner Ishimaru to the Commission and to this, his first Commission meeting. I look forward to working with him as I have with my fellow Commissioners to address the many issues that are facing EEOC during the coming months. I know that all of those who benefit from the efforts of the EEOC will glean from his insights and commitment

to the full participation of the American dream.

I also too want to thank Commissioner Silverman for all of her hard work, not just in getting us to this very important meeting this morning but for the way that she has embraced both the message and the issue of Alternative Dispute Resolution since arriving here at the Commission. I know that all of us on the Commission embrace principles of mediation and ADR, but the way that Commissioner Silverman has really made it a part of her agenda on the Commission has been a great benefit not just to the EEOC and to the issue of ADR but to all of our stakeholders on all sides.

This morning we take up a topic that has long been central to my vision for a fair and efficient EEOC, that being Alternative Dispute Resolution. And as some of you know, I was honored to have been asked by then Chair Gil Casellas (PH) to lead a task force on Alternative Dispute Resolution with former Vice Chair and Commissioner Ricky Silverman. And although Ricky is not here in the room today, much of what we embrace and talk about and celebrate as the EEOC's ADR program is in great debt to the work that Commissioner Silverman did both on the task force and prior to that task force.

I remain convinced that the product of our collaboration is among the singular exemplars of the bi-partisan spirit that the drafters of Title VII had hoped would animate the EEOC's approach to its heavy responsibility. The broad array of panelists that we have assembled for this morning's meeting are a testament to the continuing viability of the goals that we sought in recommending the EEOC's mediation program. That is a just, neutral, fair, and efficient alternative to the administrative process that can too often antagonize rather than reconcile without losing sight of the EEOC's primary mission as the chief enforcer of the nation's civil rights laws.

I look forward to hearing about our successes as well as suggestions for improvement that may be offered by our guests this morning. It has been said that success has many parents and failures languish as an orphan. And among the many parents who can take pride in the success of our mediation program are the dedicated EEOC staff who transform the vision of that task force report into a functioning program achieving real results for charging parties and respondents alike.

And despite the bromide that would characterize headquarters personnel as officious intermeddlers in the work of the field, sometimes their diligence and perseverance are precisely the right prescription. And Madam Chair, if I may, I'd like to read a quote from a letter that I received just a few days ago from Tony Weaver who recently retired as the ADR coordinator in our Philadelphia District Office. And it captures some of my sentiments.

The success of the ADR program is a direct reflection of the care, skill, and thoughtfulness that went into the development of the original program design. The bi-partisan support given to the concept of establishing an interface, facilitative program at the EEOC was crucial. Lest anyone forget, then Speaker of the House Newt Gingrich testified on behalf of the EEOC and its mediation efforts in an open appropriation hearing.

Our ability to gain our appropriation bump that year was in large part due to Speaker Gingrich for mediation. While this bi-partisan spirit was indeed crucial to the program, the nitty-gritty work of designing and activating the day-to-day operation of this new program was even more important.

And that job fell to Steve Ichniowski who was responsible for writing the guidelines and the desk book, creating all of the mediation documents to be used, to finding the details of the work to be performed by the EEOC, field staff drafting and creating job descriptions, and attending to a myriad of other administrative details necessary for getting this program off the ground. He succeeded in his efforts. And he did so on time consistent with our budgetary mandates.

Once the program was operating in all districts, Steve was and is still an authoritative source and in-house consultant to ADR coordinators. His accessibility and no nonsense answers to policy questions and quick responses for operational assistance earned him the respect of the Commission's ADR community.

While these accomplishments are indeed impressive, what isn't generally known are the personal sacrifices that Steve endured in providing services necessary and overseeing the development launch and operation of the program. Steve is a selfless public servant and the heart and soul of the mediation program as it began.

To quote Professor McDermott, who we will hear from later today, "You may spell his last name with three I's but that letter is not part of his vocabulary as he is an ultimate team player in the Commission's mediation effort." I want to publicly thank Steve and include Mr. Weaver's letter as part of the permanent record of this meeting both as a reflection of the work that Steve did and also as emblematic of the work of all of the EEOC staff, the ground staff, that really made this program happen.

Oftentimes the Tenth Floor gets a lot of credit for that which happens in other places around the building. I think it's appropriate that today, as we celebrate this program, we celebrate the staff that put it together. I look forward to hearing today's presentations and to working with my fellow Commissioners and EEOC staff in strengthening this vital adjunct to the Commission's mission of eliminating workplace discrimination. Thank you.

CHAIR DOMINGUEZ: Thank you, Commissioner Miller. And thank you for sharing that wonderful testimonial. I appreciate it. Commissioner Silverman.

COMMISSIONER SILVERMAN:

Thank you again, Chair Dominguez, for holding this hearing today and for your kind statements. And I would like to welcome our ADR coordinators. I have not had the opportunity to meet all of you, although I have met a good portion, and I look forward to meeting with you later today. Thanks for coming.

I would also like to echo my colleagues in welcoming Commissioner Ishimaru to his first Commission meeting. It's truly fantastic to have a full Commission on board. And I say that with the utmost sincerity and not just because I'm no longer the most junior Commissioner as Commissioner Miller has constantly reminded me of over the past year or so.

(Laughter.)

COMMISSIONER SILVERMAN: Actually I would be remiss in my remarks today if I did not begin by recognizing Commissioner Miller's crucial contributions to our mediation program. As you have heard, Commissioner Miller co-chaired the task force on Alternative Dispute Resolution that created and implemented EEOC's National Mediation Program.

That task force spent countless hours over the course of nearly a year examining Alternative Dispute Resolution to determine whether it would be appropriate for the Commission to use ADR to assist with its mission. As you know, they ultimately settled on mediation and they developed the core principles and structure that still guide our program today.

Now, when the task force began its work, as many of you may recall, many of our stakeholders thought it was a really bad idea. They said that it would take away from the responsibilities of the enforcement agency or that the EEOC could not play a neutral role. But I believe I speak for everyone in this room in applauding Commissioner Miller's task force and all of the Commission staff, and in particular our coordinators who are here today, for their hard work. It certainly paid off.

Our mediation program is one of the most dramatic changes that the EEOC has ever implemented. It signals our agency's recognition that the parties to a dispute are often better able to resolve their difference than the government or the courts. Since its inception in the mid-1990s, the EEOC's mediation program has flourished.

One of the main reasons that our program has continued to flourish is the fact that our chair, Cari Dominguez, has made mediation a priority since day one of her administration. The mediation program is one of the focal points in the Chair's Five Point Plan for leading the agency. Under her strong leadership, much effort has gone towards improving the quality and growing the program. We will hear about some of those efforts today.

Now, since Commissioner Miller helped create the National Mediation Program and Chair Dominguez has made it a priority, you may be asking yourselves what am I doing taking such an active role in today's meeting. No, I am not letting my recent bump in seniority go to my head. I am here because I have been a huge fan of the mediation program since its inception. And I arrived at the agency eager to work on the program. And I am so thankful to the chair for giving me this opportunity to share my enthusiasm with you.

While mediation is not appropriate for every charge, I believe the mediation program is a big part of our future here at the Commission. My previous experience has taught me that in most instances the longer an employment dispute drags on the more detrimental it can be for both parties.

Many of our charging parties believe that like L.A. Law in the 1990s and more recently in Ally McBeal that they will have their day in court where they will finally be heard and that their discrimination claims will be resolved expeditiously. But the fact is, even with the most able assistance of the EEOC or the finest private attorneys, employment disputes can take years to resolve and only a small percentage actually get that day in court.

Our mediation program aims to get the parties together face-to-face quickly and have them work together to try to resolve their problems. Even when mediation fails, most parties who participate believe that they have gained something from the process. Mediation clarifies and narrows the issues for the parties. It forces them to focus on their concerns. And it often provides a necessary dose of reality helping them to see the strengths as well as the weaknesses of their cases.

Mediation also improves communication and enhances workplace relationships. And it fosters creative problem-solving approaches to workplace disputes. And the EEOC's mediation program has never been stronger than it is today. This past fiscal year we continued to see record numbers. As the Chair mentioned, we resolved nearly 8,000 charges last year. And we achieved nearly a 70 percent resolution success rate.

Our average charge processing time is only about 85 days as compared to 160 days for traditional processing. And we are pleased to note that 84 percent of charging parties agreed to participate in mediation. Unfortunately, however, the employer acceptance rate is much lower. Only about 31 percent of employers invited to mediation accept. As they say, it takes two to tango.

And that is indeed a significant reason as to why we are all here this morning. For a mediation program to continue to grow and prosper, we must bring more employers to the table. Now, we know the program works, but sometimes our word is not enough. And that is why I am delighted to have employers of different sizes representing different industries here today who will explain why they have embraced our mediation program.

It's the Commission's hope that today's meeting will help educate and inform the public about our program and the benefits of mediation in the workplace. We also hope to explore ways to improve, enhance, and expand our program. Today's program will begin with a snapshot of our mediation program, an overview of where we are today.

We will then hear from Professor McDermott who has just completed his third study of our program. This one focused on why employers so often choose not to participate. Now as I mentioned earlier, we will also hear about the workplace benefits of mediation from employers who actually use our program. We hope from this to garner a better understanding as to what motivates those who do participate so we can more effectively market our program to those who don't.

And we will also look to mediation experts both inside and outside our agency for recommendations on where to take our program in the future. We are so fortunate to have such a broad array of experts with us. And we know that many of you have traveled today to be with us at your own expense. We want you to know that we really appreciate your doing so, and we look forward to hearing from each of you today. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Commissioner Silverman. And now, we will hear from our junior Commissioner, Commissioner Ishimaru.

COMMISSIONER ISHIMARU:

I thank the Chair, my colleagues, and the staff for the warm and generous welcome that I have received over the last two weeks at the EEOC. It's really been great. It's an honor and privilege to be here and to serve as a member of the EEOC. Employment discrimination and dealing with this vexing problem was the heart of the 1964 Civil Rights Act. And it's hard to believe that nearly 40 years later we are still dealing with it in record numbers. But, indeed, it's still here, and it's a problem.

I'm pleased that the first hearing that I am participating in is on our mediation program at EEOC. During one of my past lives at the Department of Justice in the Civil Rights Division, we were big proponents of ADR. All of us were trained. We used it as an integral part of our enforcement program. And we saw results just as we have here. Mediation is an excellent and vital part of any enforcement program. And I'm pleased that we have embraced it as a fundamental part of ours.

We have many challenges and issues on our plate. I know I've been briefed over the past two weeks on a lot of these. And I am pleased as a member of the minority and as the junior member of this panel of the collegiality that I found here at EEOC. It's something that in this town you don't always see. And working on these hard issues sometimes it's also not available.

But here it is. I think it's a tribute to the leadership of the Chair and to the work of my colleagues that it exists like this. It always hasn't been the case. And I think the Chair and my colleagues have done a great job in creating a marvelous forum to talk about these hard issues that we face. I trust that in the coming months and the coming years that a fair process, that open and frank dialogue, that transparency, and that a careful consideration of these issues will be hallmarks of our work as we march ahead in battling the vexing battle of employment discrimination.

And finally, I would like to thank Commissioner Silverman who has put in tremendous work in pulling this hearing together. I know for a fact she was here over the weekend as my two boys were banging on the walls and disturbing her. And as a former staff member, I would like to thank the staff who put this together; Amy Habib and Susan Murphy who I know have put in countless hours and countless long nights in pulling together a hard hearing. I am looking forward to the testimony this morning. It looks like an excellent way to start off. I thank the Chair, and I thank my colleagues.

CHAIR DOMINGUEZ: Thank you very much, Commissioner Ishimaru. A couple of administrative matters before we proceed. This little timer here pretty much serves as a guide for the panel members. The yellow light signifies that two minutes remain for your testimony.

So if you have an opportunity, please keep an eye on the timer so that we have a chance to give everyone the opportunity to share their experiences and recommendations. And also this is being videotaped so if we could get you to speak into the microphone, it would help our system tremendously. And without further ado, Commissioner Silverman, please proceed.

COMMISSIONER SILVERMAN: Thank you very much, Chair Dominguez. Before we get started, I wanted to remind everyone that because of our time constraints this morning, some panelists will not have time to share their full statements with us. However, following this meeting, the full and complete statements of all participants will be up on our website. In addition, our website's mediation page will be updated with new material including a sample universal mediation agreement.

Panel I

Now, it is with great pleasure that I am able to begin today's meeting with the introduction of our Panel 1 participants. Paula Choate, who usually goes by Polly, is the Director of Field Coordination Programs in the agency's Office of Field Programs. In 1990, Polly joined the agency as Director of Field Management West. And since 1997, Polly has had programmatic responsibility for our private sector mediation program. She will lead the first panel by giving us an overview of our mediation program.

Second, Professor Pat McDermott is an attorney and Assistant Professor of Legal Studies in Management at Salisbury University. If Professor McDermott did not have such an impressive and varied career, from the review of his bio, one would think that he was a professional student as he holds a BS, an MS, an RM, and a Ph.D. In addition to his academic endeavors, Professor McDermott has represented both employees and management before our agency.

Today we are looking forward to his discussion of the results of his third study of our mediation program. "An investigation of the reasons for the lack of employer participation in the EEOC mediation program" is the title. The study should be up on our website today. And a question and answer period will follow this panel. Polly.

MS. CHOATE:

Thank you. Good morning Chair Dominguez, Vice Chair Earp, Commissioners Miller, Silverman, and Ishimaru, distinguished guests, members of the audience, and our field ADR coordinators. My name is Polly Choate. I am the Director of Field Coordination Programs in the Office of Field Programs. We are responsible for development and coordination of EEOC's private sector mediation program which is implemented through our 23 districts and the Washington Field Office.

I am pleased to provide a brief overview and history of EEOC's mediation program. Our ADR program was piloted in our field offices in 1991. Based on the recommendations of its ADR task force, the Commission concluded that mediation was a viable alternative to traditional investigatory methods. In 1995, EEOC adopted its policy statement on ADR reflecting the program's core principles that any ADR program should be voluntary, neutral, and confidential.

The mediation program was fully implemented in April 1999. Our program has a firewall which separates its mediation and enforcement functions. No information disclosed in mediation is shared with staff conducting investigations or litigation. The centerpiece of Chair Dominguez's Five Point Plan, our mediation program has endured overwhelming success in resolving charges of employment discrimination.

Over 52,400 mitigations have been held. And more than 69 percent or 35,100 charges have been successfully resolved in an average of only 85 days compared to a current average of 160 days in investigations. Over $485,000,000 in monetary benefits have been secured through mediation. But monetary benefits do not tell the whole story. While traditional remedies may be explored, many mediations involve creative solutions which are developed which meet the parties own needs and interests.

Looking at the year since the program began reveals that in 14 to 20 percent of cases a non- monetary benefit is the only benefit that changes hands. Examples of non-monetary benefits include a shift change, a job transfer, out placement assistance, or training for managers or supervisors.

But the benefits of mediation often go beyond the merits or resolution of a particular charge. Through mediation relationships can be preserved, workplace communications can be enhanced. In mediation's confidential setting, the employer may learn new information which will help improve the workplace.

Each of our district offices has an ADR unit. Currently we have 21 ADR coordinators and 81 staff mediators with one to seven mediators per office. EEOC also has a contract mediation program funded at $1.8 million in 2003. Each district has from three to over 30 contract mediators. Offices may also use volunteer mediators.

EEOC offers mediation soon after the charge has been filed, but the parties may request mediation at any stage of the charge process. In 2002, we expanded the kinds of charges which are eligible for mediation. In 2003, mediations were conducted in over 1,200 charges which had been identified as having a likelihood of merit and 850 charges or 71 percent were resolved.

We also used mediation in 40 charges at the conciliation stage after a reasonable cause finding. More than half of these charges were resolved. A group of charges that failed mediation were with the same employer, however. If these charges are not counted in the mix, then the success rate would have been 74 percent.

We have encouraged employers to enter into universal agreements to mediate. UAMs take the place of individual agreements to mediate each charge and expedites the process by providing identified points of contact for scheduling the mediation. We now have over 400 UAMs at the local level and 23 UAMs at the national and regional level. National agreements include such employers as Albertsons, Kimbal Glass, Trim Masters, and Cargo Freight, and several Fortune 500 companies.

We also piloted a referral back program. With the charging parties consent, we hold further processing of charge in abeyance and refer the charge back to an employer's own internal ADR program for possible resolution. The pilot currently includes four Fortune 500 companies and one major city government employer.

We have always looked to our customers and our stakeholders for -- program. Several studies have been conducted by independent researchers to evaluate the ADR program's effectiveness and identify potential improvements. The first study, conducted by our guest speaker and his colleagues, was based on confidential surveys and mediation participants including employers, charging parties, and their representatives.

The report found that 96 percent of employers and 91 percent of charging parties would use mediation again if offered, and it did not matter if the parties were represented or not, what type of charge had been filed, or if a resolution was reached or not. The results were the same. The parties felt the mediation program was informed, fair, and neutral. And their overall satisfaction with the mediation process remained consistently very high.

A later study conducted by Southwest Texas University reached similar results. As noted by the Chair and by others on the Commission panel, despite these survey results, very few employers who were offered mediation agreed to come to the mediation table, only about 31 percent. To evaluate this aspect of the program, we asked Professor McDermott's team to survey employers about the reasons they say no and to ask what EEOC could do differently to increase their participation.

We are very pleased to have their most recent report, and we look forward to using the survey results and report recommendations to enhance our program and increase participation. I would like to introduce Professor Patrick McDermott. I think Commissioner Silverman has said it all when she made her opening remarks about his qualifications. And with no further ado, Professor McDermott.

DR. MCDERMOTT:

Madam Chair, Madam Vice Chair, Commissioners Silverman, Miller, and Ishimaru, fellow panelists, hardworking EEOC employees who are watching by closed circuit hopefully, and honored guests, our research team, including myself, Dr. Anita Jose - Dr. Jose if you could stand up - and Dr. Ruth Obar, Senior Research Fellow at the Center for Conflict Resolution at Salisbury University, were charged with investigating a relatively straight forward issue. Why do employers decline the EEOC's offer to participate in the EEOC mediation program?

Our data represents a cross section of EEOC offices and types of charges. In our comprehensive report, we discuss our research design, methodology, and profiles of the employer/employee representatives and charges. Time does not permit a detailed discussion of these areas today.

What did we find? First, we found three important reasons why employers declined to mediate a particular case. And that's important, a particular case. The main and overwhelming factor in an employer's decision to decline the offer of mediation was that "The merits of the case did not warrant mediation." This was our key finding and essentially answers our research charge.

Employers are not interested in mediating charges that they perceive do not have merit. Here I would introduce a basic concept from one of my favorite courses, negotiations theory. A fundamental requirement for negotiations - and we recognize that mediation is essentially facilitated negotiation - is that there exists some interdependent goals and objectives that require the parties to negotiate. We have found that employers do not believe - and again that's the employer's perception - they do not believe that they have any obligation to negotiate is they do not believe that the particular charge has merit.

The second major factor is that the employers did not believe that the EEOC was likely to issue a reasonable cause finding. This leads to the first reason but also relates to perceptions as to what the EEOC is going to do with the actual charge. This fits into a second key concept in why people negotiate. In addition to interdependence, conflict resolution literature notes that negotiation is necessary where there is no clear or established procedure for making the decision. Here the employers have determined that they prefer another method for making the decision in the charge, the EEOC investigation.

The third major factor is the employer's perception that the EEOC mediation program requires monetary settlement and their unwillingness or stated unwillingness to offer any money for the particular charge at issue. This factor while compared to the first two was cited by half of the employers.

In the vast majority of the cases, the EEOC could not have done anything differently for employers to mediate the charge. We asked this specific question. And the employers responded no, there's nothing that the EEOC could or couldn't do to affect our decision not to mediate. This confirms a finding that it was a perception of the quality of the particular EEOC charge that drove the employer's decision.

Without doubt, this is the answer to the question of why employers declined to mediate. In order to contextualize these employer's responses, we examined the decision-making process of the employer and whether the decision was an informed one. To us, as important as an employer's decision not to mediate was the foundation of that decision.

We concluded that once we had the contextual information it would be much easier to interpret the employer responses to the key question of why did they declined to mediate. What did we find? We found that in the majority of cases the decision not to participate in the mediation program was collective and internal to the organization.

In making this decision, a large number of the decision-makers for the company had prior experience with the EEOC and its processes. So they were familiar, comfortable, and they understood the EEOC processes. Forty-four percent of the survey respondents had experienced an EEOC decision where there was reasonable cause to believe that the employer had violated the law.

So a portion of these employers had actually had an adverse finding from the EEOC. And again, most, and I say most was in the area of about 85 percent, had regularly appeared before the EEOC with regard to various charges. Eighty percent had not been involved in any type of EEOC federal district court litigation. So most had not seen federal court litigation with EEOC. Most decision-makers were familiar with the EEOC mediation program. In fact, 54 percent of them had participated in the program before.

We also examined the efforts of the employers to investigate the EEOC charge. And again, this is part of the foundation. What did the employers know at the time that they made the decision not to mediate this particular charge? We found the vast majority of the employers had conducted their own internal investigation of the charges prior to declining to participate in the mediation program.

They used a wide variety of methods. These actions included document review, consultations with other management and non-management employees and witnesses, conversations with charging parties' supervisors, contact with company attorneys, and sometimes contact with the charging party themselves depending on whether the charging party was still employed with the organization.

We concluded that employers who declined mediation were well informed about the EEOC and its processes, the EEOC mediation program, and the merits of the charge at issue. Thus the employers were informed decision-makers. And we do not believe they acted based on a notion, false perceptions about the EEOC program, but rather made an informed decision about a particular charge.

And it should be noted that they also indicated with regard to the timing of the charge that they were not adverse to mediation. It was just at this particular point. Many indicated that they would enter mediation later when they learned more about the case. In other words, their perceptions about the charge may have been incorrect. The investigation may have been faulty. So they indicated they were not adverse to mediation overall, but for this particular point in the process, they were not interested in moving forward.

What could be done? As presently designed, at the moment in time when mediation is offered, the employers have investigated the charge internally and are not ready to negotiate based on their perception of the case. In general, this lack of interest in mediating is not related to the EEOC or its mediation program. In fact, it's quite the contrary.

Thus there is little that the present pre- investigation program as structured can do to increase the participation rate. Should the EEOC wish to increase its mediation participation rate, they can do so by changing the employer's perception of the merits of the charge at issue. I think that's the key thing here, the employer's perception of that particular charge that's being suggested for mediation.

First, we found that employers believe that some of the charges offered for mediation should never have been selected for mediation as they were completely without merit. And we're not saying this is correct or not. We're just reporting the employer's perception. If this is the case, then more careful screening should result in a richer quality of charges and thus a higher acceptance rate if again what is driving the employers is their perception of the merits of the charge.

A second way to change the employer perception of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. If mediation was offered at a later point, after EEOC investigation indicates that the charge may have merit but before a final investigative determination, it is expected mediation would be more attractive to the employers.

Again, the idea here is that the investigation may shift the perception of the employer with regard to reasons for mediating. This is supported by our research results indicating that many employers are willing to mediate the charge later if necessary.

In sum, the failure of more employers to enter EEOC mediation in its current design as a pre- investigative program is primarily structural. The employers do not believe they have incentive to mediate at the pre-investigative stage because at this time in the process they don't believe the charge has merit. Some also believe that they have to pay money at mediation.

These employers also do not have any concern that the EEOC investigation that will occur in lieu of resolution at mediation will be adverse to their interests. In fact, I would argue that they welcome the investigation. If the EEOC desires greater employer participation in the mediation program, the EEOC must address this structural issue.

A final point is that our prior studies indicated that employers appreciated the EEOC mediation program. The program was well received and it was a success. And we actually will be returning and sampling some of these same persons who had participated in the prior research. So we know overall that the program is well received. It's respected by the employer community. And yet we also know that some of these same persons who so applauded the program in our earlier research have elected for particular charges that it's not in their best interest to move forward with mediation.

It is possible that the EEOC could build on this reservoir of good will with the community to further market its program, market the fact that employers are satisfied if they do enter into the program, and use this information to further encourage employers to mediate. But our caveat here is that we believe that based on our research employers think they are making a rational decision that is essentially wholly unrelated to the overall quality and wonderful success of your program but rather is related to their perceptions in the charge.

A quick note of thanks. Madam Chair, we would like to thank you and the entire Commission for your interest in mediation and our research. We would also like to thank our EEOC contacts on this study; Polly Choate sitting to my left, Ellie Miller and Roy Reese for their technical assistance and support. They were great colleagues to work with. We also would like to thank John Nicholson for his assistance to Dr. Ruth Obar in integrating critical EEOC data from its charge database with our research database. If you have any questions, I would be happy to answer them.

COMMISSIONER SILVERMAN: Chair Dominguez, do you have any questions?

CHAIR DOMINGUEZ: Just a profuse thanks to Professor McDermott for that very comprehensive research. We look forward to really scrutinizing it carefully and to identifying other opportunities to build on this program. So I want to take this opportunity to thank you and certainly to Polly and her whole team for continuing to advance and promote our mediation program.

COMMISSIONER SILVERMAN: Vice Chair.

VICE CHAIR EARP: Thank you. Professor McDermott, is there a relationship between the employer's perception if the employee is presumably a good employee and still on the payroll, still with the company in some way, versus an employee who may be perceived as not competent or for other reasons not remaining on the payroll?

Because in our effort to market mediation, I guess my question is does it make a difference. In your study, did you find that employers distinguished, or was this notion that the charge was consistent whether they wanted to preserve the relationship with the employee or if the employee had been discharged? And if it's different, how much of a difference did you detect?

DR. MCDERMOTT: The last part of your question is the toughest and it's a great question. As to the exact amount of difference we detected, Dr. Obar could run the numbers on that. She is our statistical wizard. What we definitely detected - and in fact we had a few discussions about it - was the fact that if the employee was still on the payroll there was a much greater likelihood that the employer was willing to mediate the charge.

And what I think this gets back to, Vice Chair, is when there is a continued employee relationship there is essentially that interdependence we talked about with the negotiation theory. Essentially they are walking down the road together, and they have to figure a way to share that road and reach a successful conclusion. So yes, there is a difference. In fact, all of our research points to the fact that in a continuing employment relationship where emotions haven't hardened to the same degree as when there is a severance, the potential for a successful mediation is greater.

VICE CHAIR EARP: Was timing still an issue? If you want to preserve the relationship, was the employer more likely to want to mediate early or did they still raise the question about after the investigation to get more information?

DR. MCDERMOTT: The way I would answer that is that the overwhelming factor in whether the employer decided to mediate or not was their perception of the charge. That being said, they were more likely to mediate - and that would be immediately - if the employee was still employed with the organization.

And then we don't know to what extent persons who indicated that they may be willing to mediate later actually mediated these particular charges because we had a picture in time so to speak. But it's possible that some of the charges we investigated may actually be mediated in yet another year if these cases are litigated in federal court. We just don't know.

VICE CHAIR EARP: Thank you.

COMMISSIONER SILVERMAN: Commissioner Miller.

COMMISSIONER MILLER: Thank you and thank you to both of you. I want to start with Ms. Choate. I'm really interested as sort of the programmatic head of the ADR program around the country if you can share with the Commission what is it at this point in the history of the program that ADR coordinators need out there in the field to better implement our enthusiasm for growing and expanding the ADR program. What do people in the field say to you that they need or that they would like to see the Commission support them with?

MS. CHOATE: There's one word, resources. That would capture it in one word.

COMMISSIONER MILLER: And how would you prioritize resources in terms of the program?

MS. CHOATE: Well, there are several offices that don't have clerical support. And everyone recognizes of course that we have a budget crunch and we have been in a hiring freeze so everyone is sharing that burden. When the program began, as you may know, with all the funds that came with that bump in our appropriation, there were program assistants in every office that had a mediation unit.

Now, there are several offices that don't have that, and so that makes it more difficult. Those duties now have to be performed often by the mediators themselves or the ADR coordinators. I know that the district offices attempt to share the clerical support that is in the office with the mediation units, but in many offices there's even a lack of clerical support for the whole enforcement function.

So that would be, I think, one of the main things that they would suggest. Also, I think more contract money would be helpful and also more mediator staff. Again, everyone understands that there is a hiring freeze and why that is and why that's necessary at this point.

COMMISSIONER MILLER: But given the priorities, would you say that the ADR coordinators feel that getting support staff is the number one or the first among many priorities as oppo

sed to contract dollars or money for other mediators?

MS. CHOATE: I think the ones that don't have those would say that's the priority for them.

COMMISSIONER MILLER: Great. Thank you. That's very useful to know. Professor McDermott, you and I go back a couple of years. I just want to thank you for all of your really excellent work and insights into our mediation program. As you know, when we started down this path at the agency - and it has been mentioned earlier - mediation at the EEOC was not a gimme. It wasn't an obvious choice.

In fact, everybody hated the idea. And some of you in the back over there are smiling because we engaged in some of those conversations. And now, it's very heartwarming to see that people have embraced the program. And I think it's in large part because of your independent, credible analysis of what we were doing and how we were growing the program. And holding an independent mirror up to our program has made this program work much better.

And I think it's a testament as we begin to look at other programs the role of independent, credible analysis and auditing of these programs really help programs develop more credibly and better and are very useful insights. I want to go to the most recent report and explore one or two things with you and I guess go back and get your insights into whether you feel we have maxed out in a sense in the EEOC's tinkering with ADR processes and structures as a way of growing and expanding the program based upon your input and insights from the folks you have spoken to.

DR. MCDERMOTT: That's a good question. I worked and my research team worked really hard at identifying areas where we thought the program could improve to increase employer participation. We found evidence - whether one would classify it as diminimous (PH) or not I'm not sure - but we found evidence from some parts of the country where one travels a long way to mediation that maybe the mediation program could have been a little more flexible in the way the mediation was set up.

We found some evidence in certain situations that maybe employers were offered mediation in such a way that they really didn't have enough time to think about it and accept or reject the mediation. But overall, I think that was an exception to the rule. And I think you could increase participation somewhat by focusing on these what I would call minor tweaking for lack of a better phrase but that overall the program is well received and respected.

And the testament to the respect of the program is some of the fine individuals who will be testifying here today. And the fact is the employer decision is now driven more to the charge itself and all the decisions that are made as to whether one wants to mediate or not when they believe a charge doesn't have merit. So, if I was pushed to reach a conclusion and my research team and I discussed this, I would say that it's not maxed out, but it's a very highly efficient program right now.

COMMISSIONER MILLER: How would you judge variables let's say as those who have never had a charge filed before them so this is the first charge or people who have had a tremendous amount of experience with the EEOC in dealing with charges or even issues such as legal fees they need to pay for their own counsel as variables or factors in assessing whether to mediate a claim?

DR. MCDERMOTT: We measured all of that. The way we looked at it was both through the experience of the employers before the EEOC but also the decision-maker. And the decision-maker was defined as the individual who filled out the survey who is the person who made contact with the ADR coordinator. And we found out that about 85 percent of these decision-makers had experience with the EEOC program.

And of course, when you then overlay that with the employer, the organization, they usually had experience with the EEOC. If you had a novice employer, usually that decision-maker had maybe worked in HR in another company before then and had experience with EEOC maybe as outside counsel. So really we had relatively well informed decision- makers.

And I think you probably would have to go to maybe five percent or less where you had both the employer and the decision-maker who knew nothing about the EEOC. EEOC has been around for a while. And the fact is that most employers and their representatives have some idea. The second part of your question I have forgotten.

COMMISSIONER MILLER: Legal fees.

DR. MCDERMOTT: Yes, legal fees. We looked at that. As an attorney, believe it or not that's always my cynical view is that attorneys' fees drive a lot of the litigation game. And I always want to try to find that in my research. But I always find it very difficult to politely ask attorneys to hold onto a case long after you should mediate it just so you can make more money out of the case.

(Laughter.)

COMMISSIONER MILLER: Are you afraid of shaming an attorney?

(Laughter.)

DR. MCDERMOTT: Well, actually what we try to do is extract that information from them without them knowing it. But I think they are too smart. But we didn't ask a question like that. We asked a question which was a bit different was did your client's ability to pay in any way influence your decision about whether or not to go to mediation.

And It was a back door measure. We really were trying to figure out if they had more money you would take the case longer. We all know the person who taught us to practice law early in our lives who when somebody called and said I would like you to represent me, our mentor would say how much money do you have. Then they would say well about $100,000. Fine, that's about exactly how much it's going to cost for me to represent you in this case.

(Laughter.)

DR. MCDERMOTT: But we couldn't find --

COMMISSIONER MILLER: That's in the DNO policy, right?

DR. MCDERMOTT: That's right. But we did not find that. We actually did not find that. I have to really look at our results and go by the numbers. I really think that employers are actually making more sophisticated decisions and that their counsel actually are making decisions that are more sophisticated than just attorneys' fees. That being said, I'm convinced that there is a percentage out there that may think that way. But again, our data shows that's not the driving percentage.

COMMISSIONER MILLER: Great. Again, thank you to both of you for your really useful and thoughtful insights. As you may know, I have always believed that not every charge is appropriate for mediation. But I also believe that we are not capturing every single charge that is appropriate for mediation.

And our challenge as an agency is not to get every single charge in to mediate and into our program but to really get those charges that I think really benefit from this process as distinct from administrative or conciliation or litigation processes for that matter but to get those charges into our process that really benefit from this process. And I thank you both for your work.

DR. MCDERMOTT: Well, Commissioner, I would like to thank you because you are a bulwark of mediation advocacy and consistency. As I have appeared before this agency, you are the one consistent commissioner I have seen and exchanged conversation with you over the program. And I would just like to let you know that in my research and interaction with persons in the agency, you are very highly respected and your assistant, Paul Richard, is extremely well respected. And I would like to thank you for your efforts.

COMMISSIONER MILLER: Well, thank you very much. My consistency here on the Commission is in direct correlation with my ability to get another job.

(Laughter.)

COMMISSIONER MILLER: So as soon as we work that out, you will see a less consistent Commissioner. Thank you very much, Pat.

COMMISSIONER SILVERMAN: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I would like to go back to the question of merit. I thought that was fascinating. Were you able to tell from your research whether they were talking about whether the complainant had a legal case or whether they just had a problem? What was merit all about?

DR. MCDERMOTT: It was not always about the law. And I could ask my statistician wizard, Dr. Ruth Obar, to pull this out. But we do know the percentage of times that the decision-maker consulted with counsel. And if I had to guess - and I would be guessing - I would say that was probably in about the 30 percent range. So those internal investigations were not in conjunction with legal counsel but rather based on their layperson's understanding of Title VII law. And I would also probably say based on the anecdotal comments that sometimes it's the employer's emotion affecting their perceptions of the merits of the charge.

COMMISSIONER ISHIMARU: But is the driver here for the decision-maker, is it whether we have legal liability or is it that there is an employment problem that needs to be addressed? The person comes to you. They have a serious complaint that they have raised to this level. Is the decision-maker thinking will I be held liable under some legal theory or can I try to resolve the problem that's in front of me?

DR. MCDERMOTT: I think their reaction in most of the situations was we didn't do anything wrong. What's being alleged here just isn't right. That's not the reason we made this employment decision.

What we found that was interesting is that when an attorney enters the scene from the employee or plaintiff's side, that that ups what I would call the legal ante. At that point in time, employers regularly then seek legal advice to reinforce their initial determination that they had done nothing wrong. So we found that that was interesting. As the legal ante got upped, employers then took the next step to make sure that they were in fact on the right side of the law.

COMMISSIONER ISHIMARU: And who are the decision-makers making the call whether to take mediation at an early stage? Is it the human resource people or is it the legal people?

DR. MCDERMOTT: We found a mix but primarily internal staff persons with some assistance from external counsel. The most interesting thing we found was that it really wasn't the owner of the business in most situations or someone else not in that staff role. So it was usually a relatively informed staff decision-maker who sometimes consulted with external counsel. Some employers did use external counsel and not staff personnel.

COMMISSIONER ISHIMARU: Thank you. Ms. Choate, I have a basic nuts and bolts question. I think in the last couple of weeks I have been drinking out of too many fire hoses, and I think I have mixed up apples and oranges. Who is actually in the mediation itself when you do this? There's the mediator. There's the --

MS. CHOATE: Okay, there's the mediator who could be one of our internal staff mediators or a contractor or pro bono mediator. Then there's the employer representative and the charging party. And sometimes the charging party will have counsel or can bring someone with them, some other representative or family member. And sometimes the employer will bring counsel or bring another type of representative.

COMMISSIONER ISHIMARU: But is there a general feel as to how many times people bring other parties to the table, counsel or an outside representative? Do you have any feel for that?

MS. CHOATE: Well, I think Yvonne Gloria- Johnson, who is on the panel later who actually has field experience, could give you a better answer from her perspective personally, but I would say it's about even.

COMMISSIONER ISHIMARU: Great. Thank you very much. Thank you, Madam Chair.

COMMISSIONER SILVERMAN: Thank you. I am just going to ask one quick question although I have a million for you guys, but I know both of your phone numbers. Professor McDermott, if we were to routinely offer mediation at the later stages, post- investigation, would there still be an incentive for employers to engage in mediation early on because it's somewhat of an economic issue for us? We want to capture more people but we don't want to lose what we have now. Have you thought about that at all?

DR. MCDERMOTT: No, I haven't thought about it in any detail. I would just say off the cuff that if the goal is to get the parties to solve their own problems - and I think there is a lot of great insight offered as to why that's important - sometimesthat may just be something that happens later as opposed to earlier.

So if you don't offer it initially, would that chill your initial offer of mediation? I'm not sure that it necessarily would. But that's one thing you may have to think about. If employers knew that mediation was offered later, would that chill the opportunity to resolve the charge early? I probably would think not, maybe for a few, but for most there's a lot of reasons you want to resolve a charge early that have to do with other factors than the program itself.

The other things is that most savvy counsel know that essentially they can negotiate the case later with the EEOC anyway, the investigator anyway. They can almost obtain a de facto mediation depending on the particular practices of an office. So there's always that opportunity anyway if you think about it. That's what conciliation theoretically is all about.

Panel Two

COMMISSIONER SILVERMAN: Thank you. If there are no more questions, I would like to thank our Panel 1 very much. The first grouping of Panel 2 can take your seats. Panel 2 will focus on why parties choose to mediate and the workplace benefits of mediation. Panel 2 is broken up into two parts in part because our table is only yea big.

The first group will provide employer's perspective. I would like to welcome Donna Gwin who is the Director of Human Resources for Safeway, Laurice Royal who is Senior Counsel for Labor and Personnel at Johns Hopkins Health Systems Corporation, Linda Workman who is Vice President of Workforce Effectiveness at ConAgra Foods which is one of the largest employers to have ever signed a universal agreement to mediate with us, and Robert Carr who is Vice President of Human Resources for Society of Human Resource Management who is going to share the perspective of some of the smaller to mid-size employers. A question and answer period will follow this where we will have all the panelists come back up. Let's start with Donna please.

MS. GWIN:

Good morning. Thanks for inviting me here this morning to talk about mediation. It was interesting to hear from Professor McDermott about some of the things that he found because the perceptions were mine at times. I have been with Safeway since 2001, but prior to Safeway I worked for several employers that I did not mediate at that time.

My idea was, just as he talked about, that when I got the charge that we didn't do anything wrong, and there was no reason to mediate. It was not understanding the mediation process. So it was just that I would just say no I don't want to pay any money and so therefore never mediated a charge until I did come to Safeway in 2001.

I think how that changed for me is my company's overall attitude on mediation. When I entered the position, they had already been mediating charges with the EEOC. So when they came up, it was an automatic that we would with most charges mediate. So at that time, I started attending mediations and got to know what the process was.

I also attended a 40 hour mediation certification training. That gave me a perspective of what it was about, what the mediator's role was, and an understanding from that perspective. I have to say we are extremely pleased with the mediation program. We have mediated almost every charge that has come through and at a very early stage. We try to in the very beginning.

One of the major things that I have learned is that idea that it has no merit, we didn't do anything wrong. Safeway down in the Washington, D.C. area has 140 stores. So we were relying a lot on our store management and "the story they tell us." So at times, going to mediation, I have learned a great deal that there is some - I hate to say merit - but there are sometimes some issues that we can learn from.

I do also feel that sometimes, to your question, Vice Chair, that emotion does come into it because if it's a "problem employee" that's terminated, there's times you just don't want to ever sit across the table from them again so you really don't want to go to mediation. But we usually do. The reason why too is we're all stretched. We have to do so much more with so much less.

By not having to write the position statement and gather all of the required information, which is very time consuming, we just figure it's up front on what the issues are. Let's try and get them resolved. Frankly, it saves us having to write a position statement. We resolve many of them.

Also the professionalism of the mediation program. I mainly deal with the Baltimore District Office and the Marie Sciscione (PH) in that office. I have to say I have dealt with Marie and some contract mediators. They are always professional. They are unbiased. They get us to an agreement. So I think that has helped with the program.

We do have a universal agreement with that office. I would probably say right now pending I have total 12 charges. Like I said, we have 148 stores or close to that. I had over 15,000 employees. So we're proud of that. I think by mediating early we get them resolved. We then gain a good rapport with the employees as well because we found - especially those that are still employed - the next time around they tend to give me a call versus filing a charge because they think we are reasonable and we listened.

A lot about mediation we learned early on is it's so valuable to hear the employee, to just listen, to listen clearly, to take good notes, understand their feelings. It's a lot about feelings. Then later when they think you are reasonable, you listened, you come to an agreement in the end, then the next time around they tend to call me and say you were helpful last time and I have this concern or this issue and let's deal with it.

I think as we talked about I learned that there were some myths. Again, if we did something wrong or if we didn't do anything wrong, well we are not going to mediate. You have to remove that myth about whether we did anything wrong or not but let's listen and see what the issues are. We have to pay money. We talked about that.

That was the initial thing I thought. I didn't want to pay anything. We have resolved many charges with no money. We just had one yesterday that we resolved. A lot of it was around either training or doing an investigation and coming to resolution. But there are a lot of things. Sometimes it was a neutral reference. We have come out of things without having to pay a lot of money.

One of my concerns - and this has not happened - is the word will get out that all you have to do is file a complaint and go to mediation and the company will pay money. It's a real big concern because you don't want the floodgates to open and all these people feel this is an easy way even if it's $2,000 or $3,000 from the company. We have not found that to be true whatsoever.

Actually I feel as though all of our charges have gone down. I do think it's because our employees do look at us as being reasonable, as listening. We have learned a lot of things that we might not have been handling correctly, and we have tried to go back and be proactive and fix those things so as to avoid charges in the future. We have learned a lot of that through mediation. So we really haven't had to pay.

Some people think it's not worth the time. We talked about whether it's the travel time. Sitting in mediation sometimes for three, four, five hours, whatever the time is. To me, it is well worth the time and the effort to learn all the things that I have learned.

I think the advantages, as we have talked about, include it gets resolved quickly. We normally don't have a write a position statement. That really helps us. It does preserve the relationship especially with our internal employees. A lot of them have never gotten the chance to meet me or talk to me so it's talking across the table and really listening to them. Preserving the relationships is a big thing. As I said, learned issues that needed to be addressed or fixed and viewed as a reasonable employer that listens. Then as I said, they will call HR in the future.

I wrote a few maybe suggestions if you will about how we can get the word out there to others. One is actually publicizing mediation. I don't know how you do that, but I know with every charge comes the would you like to mediate. Some people not understanding the process, as I didn't, just put it aside.

So somehow calling the employer when they get the charge, talk him through, or if they get it back and they don't want to mediate but the employee is willing, maybe some dialogue. I have been more than willing and have done it in the past to call other employers to tell them my perceptions and how it has worked for my company.

I hear that we have someone from SHRM. I belong to local chapters of the Society of Human Resource Management. I know they are always looking for topics. One may be about mediation, Alternative Dispute Resolution, tying it into the EEOC, and maybe having employers from the area come and speak about it. So that would be a way to publicize that.

The other thing - and I don't know how this plays in - is we do have a universal agreement to mediate. I think some of the times we get involved with the other agencies, the PHRCs, and they are not real quick to want to let the charge move over to the

EEOC where we have the universal agreement to mediate.

I think because of the rapport that we have gained and the importance of that - I don't know how you do it - but at times they seem to persuade the charging party where they want to move it and they say you don't want to do that. So then they decline to mediate if we're going to move to the EEOC. I don't know if you can get involved in that, if it falls under the big umbrella or not.

COMMISSIONER SILVERMAN: Thank you. Laurice.

MS. ROYAL:

Good morning. I would like to thank the Commission for inviting me to participate as a speaker in today's proceedings to address the benefits of mediation in the workplace from the employer's perspective. I come this morning as a member of the Office of General Counsel for the Johns Hopkins Health System Corporation which represents a group of healthcare employers that utilize or support the mediation program, some of whom have signed the universal agreement to mediate drafted by the Commission.

My clients are primarily the Johns Hopkins Health System Corporation, the Johns Hopkins Hospital, the Johns Hopkins Bayview Medical Center, Johns Hopkins Community Physicians, Johns Hopkins Home Care Group, Johns Hopkins Healthcare, and Howard County General Hospital. I tell you all of these things because all of these employers support the program.

I am a member of an informal focus group which was formed between the American Bar Association and the EEOC whose mission and activities will be discussed later in these proceedings by Commissioner Silverman and Mr. Maurice Wexler. I should probably give you a little bit of information about my background so that you can get an appreciation for how far I have personally come from the way in which I managed complaints of discrimination and where I am and where my clients are in this journey.

Prior to joining the General Counsel's Office I was in the Litigation Section of the Baltimore City Solicitor's Office for about ten years. My chief responsibility - and I say this in quotes because this comes out of my job description - was "to vigorously defend the city in all employment litigation matters and to vigorously defend meant you fight everything. There was no in between. It was you would go to court.

We litigated every case and rarely settled anything. If I tried to work anything out, it was only at the urging of the court in settlement conferences. Prior to that, rarely did I contemplate discussing resolution. That just wasn't feasible in most cases because management and most human resources offices were not interested in settling. Settlement was viewed as a defeat or an admission and not supportive of personnel decisions that were made by management.

I must also add that there really wasn't a mechanism in the agencies that I regularly dealt with to consider voluntary resolution unless we were talking about conciliation after a finding. Of course, the employer was not in a great position to negotiate at that point. When I was hired by the Office of General Counsel for the Health System in 1994, my immediate responsibility was to get a handle on the pending EEO charges and to once again vigorously defend my clients.

I had more resources available to me and was able to hire outside counsel, expert witnesses, and to utilize other supportive resources to defend my clients. I can say that in most cases we actually prevailed. In a few matters, we actually settled just before trial. Although we prevailed in many cases, litigation took its toll on our resources both financial and human.

Litigation often took on a life of its own, lasting sometimes for years. During that time, management memories waned, staff moved on, employee/employer relations soured, and attorneys fees escalated. In the end, it did not seem to be an effective way to continue doing business. There had to be a better way.

An investigator that I had known for several years and who is present here today I might add, Maria Sciscione (PH), approached me on a few occasions and expressed that perhaps there might be a way to resolve some of our charges. That may have been sometime in 1996. Although at first I was resistant, I listened.

She talked to the charging party in one of my cases. I talked to my clients. After a short period of time, we all agreed on a resolution that was acceptable to all parties. The beauty of the resolution was that it involved a current employee who was still in the workplace and who had to continue to have a relationship with management after the charge was filed.

In the course of resolving the charge, we were able to reestablish a workable relationship that would have likely continued to deteriorate and of course from our perspective create additional exposure for the organization. It was truly a win-win situation. As time passed, more and more of our cases were resolved through the informal mediation process. I believe that the Health System signed its first universal agreement to mediate in probably 1999.

We did so because we saw tangible benefits from our early participation. In our experience, we found that cases are normally resolved relatively soon after they are filed. Successful mediation of course eliminates litigation costs.

Mediation improves employer/employee relations. Mediation provides a neutral forum to discuss workplace issues. Mediation is truly voluntary. Mediation is confidential and isn't held against the parties if we are unable to settle. We trusted the integrity of the process. And mediation actually works.

I think that it is important to note that our experience in the Baltimore District Office has been exceptional and that but for the professionalism of the staff I'm not sure that we would have embraced the program so readily. I say that because I do understand that there are different experiences in different offices. But our particular experience has been really good.

Hopkins is striding to be an employer of choice. We think that participating in the EEOC's mediation program moves us that much closer to meeting that goal. Employers of choice do not sit in court with their current or former employees. We work at resolution at every stage from the time that an employee approaches his or her immediate supervisor or HR with a concern through attempting resolution through the EEOC mediation process.

This does not mean that Hopkins is a push over. You can ask anyone on the plaintiff's bar who has been across the table from us in mediation or any mediator who has handled any of our cases. When we mediate, we are tough and we are frugal. Sometimes I'm called cheap.

(Laughter.)

MS. ROYAL: But we are fair and we negotiate in good faith. If a case is not appropriate for mediation, we don't mediate. If we cannot come to a resolution at the end of one session, we rarely continue the process. Notwithstanding this, we resolve at least 75 to 85 percent of our charges annually through the mediation process.

As a result of our commitment to the mediation program and the efforts of management and human resources within each organization, we have seen a dramatic drop in pending Title 7 charges throughout the entire health system. Without giving exact numbers, out of approximately 15,000 employees employed by various employers within the Health System, there are a handful of pending charges. I would say right now it's probably under eight. Okay.

It is not without a great deal of work on my client's part that these results have been achieved. Managers are trained by each human resources office to quickly respond to allegations of discrimination. Of course, each employer has a comprehensive anti-discrimination policy which all employees are made aware of on the first day of employment during orientation.

The HR professionals responsible for implementing the policy conscientiously follow up with the investigation when a complaint is filed internally. They do a great job of resolving issues before they become an external matter. We also have an internal mediation process that employees may utilize prior to filing an appeal of any workplace issues. If the situation can't be worked out, HR fully embraces the EEOC mediation program, and I believe that sends a great message to our employees.

Finally, I would like to pass on a few lessons learned that my clients and I have learned along the way as participants in the mediation program. Number one, we learned that the parties must be prepared to mediate a case. You can't just go into mediation without having done your homework.

I always meet with management and HR to go over the facts of the case, all files, and any reports that may have been prepared. We discuss possible ways to resolve the case. We get authorization from the appropriate executives and apprise them of the situation so the process is not hampered by waiting to get authority from them in the situation that we get authority, that it's fair, and what we believe will resolve the case.

We learned that settlement is not always about money. Sometimes there are non-economic ways to settle a case that may be important to the charging party and to my clients. I think you heard Ms. Gwin tell you about some of those non-economic ways to solve those cases.

We learned to be open-minded and flexible. I can't tell you how many times I walked into mediation thinking to myself that there was no way this case was going to settle. There's too much water under the bridge. Of course, I never tell the clients because I don't want to scare them away. And most of the time, I am dead wrong because as I told you before we settle most of our cases.

We learned the importance of coming to the table in good faith. And that means coming with a meaningful, well thought out proposal. We learned the importance of respecting our employees at the table and that although we may disagree with their position and may even believe that their claim is frivolous that it is important for us to keep an open mind and to keep our thoughts on resolution.

And finally, we have learned that not every dispute can be resolved by mediation and that's okay as long as we gave it our best efforts. In conclusion, I would like to thank the Commission once again for inviting me to this forum. And I'm happy to answer any questions you might have regarding my remarks.

COMMISSIONER SILVERMAN: Thank you, Ms. Royal and Ms. Gwin. If you could just trade places with Linda Workman and Robert Carr, then we'll have all of you back up for question and answer. Ms. Workman, would you begin?

MS. WORKMAN:

Thank you. Madam Chair, Madam Vice Chair, Commissioner Miller, Commissioner Silverman, Commissioner Ishimaru, and colleagues, on behalf of ConAgra Foods, I appreciate the opportunity to appear before the Commission today to offer our comments on the workplace benefits of mediation. I would like to begin with a brief overview of ConAgra Foods so that you can put my remarks in context.

ConAgra Foods is the home of many famous consumer food brands and is one of North America's largest packaged foods companies serving consumer grocery retailers - we hope Safeway is one of those - as well as restaurants and other food service establishments. This is an important time in the history of our company as we take steps to become what we call America's favorite food company.

Last week we finished two divestitures that complete the strategic reshaping of the company into a branded and value added packaged foods company. Through a series of strategic portfolio changes that include the sale of our fresh beef, pork, and chicken processing operations among others, we have now concentrated our capital in branded and value added foods.

Today we have more than 40 favorite brands including Act II popcorn, Armour, Banquet, Blue Bonnett, Brown and Serve, Butterball, Chef Boyardee, Cooks, Crunch and Munch, Eckridge, Egg Beaters, Fleishman's, Gulden's, Healthy Choice, Hebrew National, Hunts, Kid Cuisines, Knocksbury Farm, La Choy and many others. I'll stop there. But even as we move to reshape our company through acquisitions and divestitures and transform our marketing and operating models, it is important to note that there are several things that are very basic and core to who we are as a company.

Our future is just as importantly built on those values and beliefs. And that includes teamwork, accountability, ownership, integrity, and diversity. It's those values and beliefs that prompted us to enter into a national universal agreement to mediate with the EEOC in March of 2003 which is what we're here today to discuss.

Disagreements and misunderstandings unfortunately are a fact of life. And at times, they do extend into the workplace. We entered into the agreement with the Commission on a voluntary basis because it fits with our value of promoting equal employment opportunity. We also very practically recognize the value of early dispute resolution when it can be reasonably achieved. For us, mediation just makes good business sense.

Prior to signing our agreement, we had utilized mediation to resolve discrimination matters on a limited basis, in general only when we were invited either by the Commission or a state agency and only when there seemed to be a compelling reason to do so. Since joining the Commission's mediation program, we have had an increase in opportunities to mediate not because we've seen a rise in our charges but because we now consider mediation in every case where it is available.

This is a value to us because it facilitates a greater number of charges being resolved and resolved early in the administrative process which is of benefit to all parties including the Commission. One of the key reasons we elected to participate was to increase the awareness, involvement, and understanding of our HR managers and professionals in our field locations. We want them to know the benefits of mediation to achieve dispute resolution.

Administrative charges, whether filed with the Commission or another agency, can have the effect of creating a stressful adversarial environment. It can lead to further proceedings including litigation unless a healthy intervention takes place to resolve the matter. We believe mediation provides an opportunity for such an intervention. And when successful, it assists the parties in promptly returning to a more productive employment relationship.

At ConAgra Foods, we are able to utilize the process whenever possible and recognize its benefits. For this reason, in July of this year, we offered in-house mediation training to all of our operating group HR staff so that they could more effectively participate in the EEOC's program. At that session, more than 80 members of our HR organization participated in the two day training session. We intend to repeat that session on an annual basis.

We wish to express our appreciation for the support we receive from the Commission in developing this training. Ms. Paula Choate, Director of EEOC Field Coordination Programs, actually came to our corporate headquarters and delivered an excellent presentation to the group on the business wisdom of utilizing mediation. And that kicked off our national universal agreement to mediate.

Since entering into the agreement with EEOC, we have recognized several advantages to participating and I would like to just mention them. First, when mediation is successful for an employee who has filed a charge, it allows that employee to return to productivity more quickly. It avoids a lengthy investigation. It avoids adversarial feelings and at least mitigates them. In this way, mediation contributes to overall workforce effectiveness.

Participation in the program is also a means by which a company can communicate to its employees that it's committed to providing equal employment opportunity as well as communicating directly with the employee or applicant or other charging party about the specific issue. The mediation process can be an opportunity for an employer to explain and clarify the action it has taken as well as any other actions that may be necessary.

So it is an opportunity to practice positive employee relations. It often narrows the issues that need resolution. Even if mediation fails, that translates into a less expensive and more focused internal investigation for the employer. If successful, it saves time, energy, and other costs associated with the resolution of that issue. The company will not have to respond to an administrative charge by submitting a lengthy position statement.

In our experience, mediators have background as either EEOC investigators or attorneys well versed in employment discrimination law. This enables them to be effective in helping the parties be realistic in their settlement expectations which is a crucial step towards success. Mediation isn't all about money. It's about practical solutions.

We have many non-monetary remedies through mediation such as reinforcing company policies, providing the charging party with a letter of reference, and the list goes on. From an administrative perspective, there are very definite advantages. We have a single contact person in the company to receive all charges. It accelerates the scheduling of mediation.

We don't give up any flexibility to manage charges since we still have the right to participate a lot on a case by case basis, and the process is not burdensome. Conferences typically take a half of a day to a day to complete. And there are other advantages as well.

In conclusion, based on our experience at ConAgra Foods, the mediation program is a valuable tool. It is a sound approach for addressing the resolution of charges in the workplace. We encourage other employers to use it. We thank the Commission for making the program available. Thank you.

COMMISSIONER SILVERMAN: Thank you. Mr. Carr.

MR. CARR:

Good morning, Chair Dominguez, Vice Chair, and Commissioners. Thank you very much for this invitation to comment at the Commission's meeting on the EEOC's mediation program. I am Robert Carr, Vice President of Human Resources and Strategic Planning for the Society for Human Resource Management, or the Society.

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' experience with mediation particularly those who represent or work with small to medium sized organizations. My comments include examples of experiences from SHRM members.

You might imagine a letter from the EEOC is quite intimidating. Pretty much it's as welcomed as a letter or notice from the IRS. To our members, this program was probably as welcomed as a pack of Rolaids at a chili cook off. Both do let a little steam off the situation.

(Laughter.)

MR. CARR: As human resource professionals, our members are especially interested in EEOC's mediation program as they often stand on the front line of most 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 the employer's policies and procedures following the state employment laws and business principles.

Although decisions reached in employment disputes are based on sound legal policies, the decisions unfortunately can be the impetus for employment law claim. Fortunately the EEOC's mediation program can provide both employers and employees an opportunity to resolve employment disputes without embarking on expensive, aggressive, and lengthy litigation.

We favor the program because the human resource profession can play an active role in the resolution of an employment dispute. A number of SHRM members have participated in EEOC sponsored mediation. In fact, as a small employer, I have also participated in the mediation process. And though our complaint was not resolved, I can tell you it was a very welcomed opportunity and a very fair and expeditious process.

We have an information center which handles more than 80,000 calls per year from our members. We regularly receive 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 main benefits of the program is the informal process. It doesn't require legal counsel for either employer or employee in the process. And again, employee members can play an active role in the resolution of disputes. As a result of this structure, employment disputes handled through mediation are often resolved collaboratively and at less expense, a true benefit for small employers.

Another advantage of the mediation program for our members is that it allows parties to converse openly and freely about workplace disputes in a very confidential setting. Mediation enables small businesses to manage their disputes more efficiently because the parties are able to resolve the disputes without the expense of attorneys, courts, or the legal process.

It also offers a non-adversarial setting. The use of neutral third parties to help resolve differences and facilitate settlement is a very welcome aspect of the mediation process. Because of the informality, parties through mediation can explore a variety of case conclusions that litigation often does not offer. As my colleagues have testified, neutral letters of references, access to out-placement services, continuation of employer provided healthcare are just a few examples of case conclusions that have been derived through mediation that may not have been possible through the litigation process.

While our members have found EEOC mediations to be fair and efficient and to be fair and helpful in resolving outstanding issues, there is more that can be done. For one, we think there should be greater outreach to employers. The sense of fairness and efficiency in the mediation process has been especially strong in the regions where the EEOC has taken steps to reach out and work with the HR community.

Our members have been especially complimentary of efforts of the Regional Office in Detroit and in the Regional Offices in Texas. There have been a number of efforts of outreach to our employee groups. And we think that has come a long way in helping to expand the program and to create a stronger sense of impartiality. We think in sum that the EEOC mediation process and program can 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 Texas and in Detroit.

We have a couple of suggestions for improvement. While we agree that EEOC mediation benefits all parties to the employment law claim, there are a couple of steps we think that you can take to enhance the program. One frequent concern expressed by members is whether or not the EEOC and an enforcement agency can remain impartial in the mediation process and not assume that discrimination has in fact occurred.

Another concern expressed by our 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 a 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 believe that the Commission is making great strides in its objectives by partnering with employers and human resource professionals.

However, we think that more can be done. And we welcome the opportunity to work with the Commission to explore ways in which the EEOC can be an even stronger partner with human resource professionals and to publicize the availability, impartiality, and benefits of participating in the EEOC sponsored mediation programs for both employers and employees alike.

One way that we see at SHRM to strengthen the EEOC's mediation process is to make greater use of mediators outside of the EEOC. While we recognize that there are cost implications to this approach, we think this step would greatly improve the perception of impartiality of the mediation program as well as increase the utilization by both employers and employees.

We think 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 resources background will certainly help bring a similar process to completion in a fair and expeditious manner. It's what we do each day. Additionally, human resource professionals are aware of the laws and regulations covering discrimination in the workplace and could further enhance the mediation process.

Another suggestion we have for improvement -- and we have agreed that this is an effective way to mediate claims -- might increase should the EEOC mediators do more than simply facilitate the resolution of a dispute. Facilitation mediation focuses on the mediator or neutral third party.

Good mediators should be able to think outside the box and bring personal insight to the process. They need to let both employers and employees know the likelihood or the unlikelihood of having a favorable outcome in the investigation. They need to be able to do more than offer an employer a monetary amount to bring closure. It is especially important for both parties to understand the likelihood of obtaining a favorable settlement in the process.

We think the EEOC should more strongly encourage mediation to both parties. SHRM believes that the EEOC mediation program would be more effective if mediation were more strongly encouraged prior to litigation. One suggestion is to expand the mediation program to cover post-probable cause conciliations and tie the conciliations with mediation techniques. SHRM believes this will increase the number of pre-litigation resolution.

On balance, we believe most aspects of the mediation program were 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 may prolong the process and create unfair disadvantages to one party or the other. In conclusion, we appreciate the opportunity to offer our comments and will be happy to oblige you with additional information or clarification. Thank you very much.

COMMISSIONER SILVERMAN: Thank you. Would Ms. Gwin and Ms. Royal come back up for question and answer?

VICE CHAIR EARP: Ms. Royal, what advice would you give us for convincing other employers to do what you have done?

MS. ROYAL: Well, I think that's a wonderful question. That is something I have been considering. Right now, when I prepare for mediation, I basically, each time I prepare I have to educate and then convince management that this is the right thing to do. If we could make this an integral part of our training programs -- we have a lot of training programs at the hospital as I said earlier.

We do have an anti-discrimination policy that we tell employees about. We have effective supervision. We have management enhancement course. We have all kinds of courses that we offer. And we give them an overview of employment laws. The next step I think will be telling, particularly management, up front when they become a manager about the mediation program and that Hopkins supports it. As I said, right now, I have to on a one-on-one basis educate each manager when they receive a charge, and that becomes burdensome after a while.

VICE CHAIR EARP: Yes, it occurred to me that if you left we may or may not have someone with your same passion for it.

MS. ROYAL: Except that I have made a believer of the General Counsel and the Deputy General Counsel and all the lawyers in my office.

VICE CHAIR EARP: That's a start.

MS. ROYAL: So I'm hoping. I absolutely believe that. In fact, anyone that we talk to that works with us, outside counsel, they have to embrace it as well. So we do make sure that individuals that represent the company are educated. But I think it makes a lot of sense to institutionalize it as well.

VICE CHAIR EARP: Thank you.

MS. WORKMAN: I do think it needs to be part of the infrastructure to produce the result that it is used on a regular basis particularly in a large corporation where you have HR people in remote locations making independent decisions about how they are going to address a particular charge. So I think there needs to be leadership within the organization whether it comes from the corporate headquarters as in our case or a more local part of the organization.

As far as what advice I would suggest you give, I really think educational communication is the key to this. I believe there is some misunderstanding out there about what participating in this program really means. It does not mean that you have to come to the table prepared to write a check. It does not mean that you only mediate a charge if you think there is merit. Don't wait for the investigation.

I think if the Commission were to put together some sort of communication package that was off the shelf, ready made that could help employers communicate internally about the benefits of the program, particularly for small employers, I think that would be very valuable. That's the reason that we asked the Commission if someone would come to our headquarters and participate with us in the roll out of this to lend the additional energy and clarity to really make this successful.

VICE CHAIR EARP: Great. Thank you.

COMMISSIONER SILVERMAN: Thank you. Commissioner Miller.

COMMISSIONER MILLER: Don't get nervous. I want to thank all of the panelists for your insights especially the panelists in-house from corporations, employers. I think your stories have really been very useful and thoughtful as understanding your process as you have come to learn and grapple and understand the usefulness of mediation as a way of interacting with the EEOC.

Mr. Carr, I have one question though for you. Towards the end of your remarks you talked about the SHRM members expressed dissatisfaction with the EEOC's programs, the ADR programs, and procedural elements. You sort of alluded to rules or processes to protect parties from tactics which prolong or create unfairness within the system. I was wondering if you can sort of expand a little bit on procedural elements and sort of what tactics were you referring to. Give us a little bit more.

MR. CARR: Thank you very much. A prime example of what we see as a deficiency in the procedural aspects stem from the fact that there are no penalties for either not showing up or calling in late to a scheduled mediation. That can be very costly because each time an employer has to prepare sending someone there quite often we find a case that a mediation is rescheduled.

If you have a sincere interest in participating in mediation, you'll have to show up again. There are costs involved. It may be rescheduled to a different location depending on who the mediator is, and that can add to the cost and expense. So we think there should be some sort of penalty for either side where people fail to show up or postpone a hearing that's been scheduled or unfairly so or on short notice.

COMMISSIONER MILLER: Great. Thank you.

COMMISSIONER SILVERMAN: Commissioner Ishimaru, do you have any questions?

COMMISSIONER ISHIMARU: I have a few. For Ms. Royal, I want to clarify something. You were talking about internal versus external mediation and that you had both. You do the internal mediation, I would assume, first, right?

MS. ROYAL: Absolutely.

COMMISSIONER ISHIMARU: What's the difference?

MS. ROYAL: Well, the external mediation I am talking about is the EEOC's process. Internal is a step before an employee can file an appeal. What they have available to them is mediation which involves a person in management who has been trained as a mediator who is outside of the department that the employee is actually employed by who acts as a neutral and listens to the employee's side and management's side and tries to work out a solution before the matter continues either through the appeal process or goes to an external agency or to litigation.

COMMISSIONER ISHIMARU: Then what are the chances that something will be resolved or not resolved in the internal mediation but possibly resolved in the external mediation?

MS. ROYAL: Well, I'm sure that most employers are aware that some employees are suspect of the employer's internal processes. Those who don't utilize the internal process usually go straight to the external agency processes. So this is just one more way we try to resolve. If we can't work it out, employee to supervisor, employee to HR, then the next step could be, is an option, internal mediation or the appeal process. And if it's a union employee, it would of course be the grievance process.

COMMISSIONER ISHIMARU: And for the general corporate members of the panel, we have these universal agreements to mediate. How do they help you communicate to your people that mediation is a good thing? Has this led to an increase in the use of mediation?

MS. GWIN: Well, I think as I said what helps most is because you kind of gain a relationship and a rapport with that district office. It helps me anyway for the most part. I pretty much get the same mediator unless they are not available and then I get one other. So you pretty much can get maybe one or two mediators that know you, your company, and you get to know them. You really see how serious they are about trying to resolve this. And I think that just helps. We really like the universal agreement to mediate.

COMMISSIONER ISHIMARU: And your universal agreement is for your area. Or is it nation-wide?

MS. GWIN: Ours is just our area.

COMMISSIONER ISHIMARU: And Ms. Workman, you have one as well.

MS. WORKMAN: We do. We have a national agreement. What that has meant for us is that we now consider mediation in every case for every charge.

COMMISSIONER ISHIMARU: So it's part of the checklist, you go to it --

MS. WORKMAN: Yes, it is. We are a rather large organization. We are still going through a process of education internally about this making sure that our people in our various plant locations are in fact participating in mediation. But that is the benefit for us. It has significantly raised awareness. Corporate expectations are understood or increasingly are understood about how we are engaged with the Commission on these charges.

COMMISSIONER ISHIMARU: Great. Thank you very much, Madam Chair.

COMMISSIONER SILVERMAN: Madam Chair.

CHAIR DOMINGUEZ: Thank you, Commissioner. Just a couple of comments and observations. First of all, thank you so very much. I appreciate not only your belief in mediation but your spirit of partnership in partnering with the Commission in this effort.

To Mr. Carr's comments, I'm pleased to say that we not only have internal mediators now but we also have external mediators for those employers who may be a little hesitant about using our internal mediators. The irony of this whole thing is that when we do satisfaction surveys we find out that after they use internal mediators they seem to prefer internal mediators to external. But nevertheless, we have them both just in case because we don't want to miss out on any opportunity.

We have been very consistent, all of you and all of us, in singing the praises of mediation and talking about the direct benefits of mediation. I was wondering as some of you are HR practitioners if you could talk about and perhaps we can think about how to promote the unintended benefits of mediation. From your experience, what have the unintended benefits of mediation been?

Let me explain that a little bit. For example, we find merit based on our data in a little under 20 percent of all of the charges, 19.6 percent or something like that, which means that 80 percent of the charges that come before the Commission are dismissed with a no reasonable cause finding or an administrative closure. We can't substantiate the merit which leads me to believe that there are a lot of management issues going on, lots of issues that perhaps these opportunities allow you to resolve and address. I was just wondering if you have any experiences. Ms. Gwin.

MS. GWIN: Yes, I would mention that's one of the major benefits because I originally think looking at the case, you talk to the manager, and they say we did nothing wrong. So as we talked about before fight, fight, fight. But when you go and you listen to the employee, there's times I don't think it's discrimination as sometimes you find it's a miscommunication and misunderstanding, just something that didn't go right. We didn't follow a process or procedure that we have in place.

So we have learned that. And we have gone back and we have either put together training programs to address those issues, or we have had one-on-one conversations with managers so that they can see their ways and see what the issues are. So that's why I agree that we mediate every charge as long as the employee or the ex-employee wants to mediate.

That's why I said we have learned so much. I think it really has helped in the long run to reduce our charges. People wouldn't think that was the case because either they have heard this person may listen, they react, and give them a chance. So I think it has reduced our charges not increased them.

CHAIR DOMINGUEZ: The point is I think that we would be served well not only to market the direct benefits, that it is faster, that it is voluntary, but also to talk about this from the perspective of how to improve our management and our leadership and to the Vice Chair's comments exactly, putting case studies, examples of these mediation opportunities in our training and certainly making believers out of those who are on the fence in terms of this, maybe even putting in performance appraisal standards and things like that.

COMMISSIONER SILVERMAN: Ms. Workman, did you have any comments?

MS. WORKMAN: Yes, I would agree with you completely. There is definite advantage in my opinion of having avenues available to employees to express their concerns. This is in addition to what you may have internally whether there are hotlines or open door policies or whatever. This does serve as one of those avenues.

So regardless of what the issue is that may be presented, whether or not it has merit under Title 7, if it is draining the resources and on the mind of that employee and maybe having a negative impact on their productivity, getting the issue out on the table, reaching a resolution is going to be helpful to the productivity of that employee and the company and the overall effectiveness of the workforce. So I mentioned a moment ago that I feel that education and communication are an area of focus that the Commission could leverage and include in case studies and expanding that to include the unintended benefits is a very good idea.

CHAIR DOMINGUEZ: Thank you.

COMMISSIONER SILVERMAN: I want to thank all of our panelists. It was just fantastic to hear from all of you. I guess if there are no more questions we are now going to take what's basically a ten minute break but if everybody can be back in eight minutes.

(Whereupon, the foregoing matter went off the record and went back on the record.)

COMMISSIONER SILVERMAN: Thank you everybody. I now welcome the second half of Panel 2. We will hear from a mediator and charging party's perspective on mediation and its benefits. Charles Warner is a partner with Porter, Wright, Morris & Arthur. Charlie is a management side employment and litigation attorney practicing out of the firm's Columbus, Ohio office. He is also an outside contract mediator in our agency's mediation program.

Second, we'll hear from Joseph Mallon. He's an attorney with the Baltimore Law Firm of Mallon and McCool. He has represented many charging parties before our agency and in our agency's mediation program. Thank you both for coming here today. Charlie, go ahead.

MR. WARNER:

Thank you very much, Chair Dominguez, Vice Chair Earp, Commissioner Silverman, Commissioner Miller, Commissioner Ishimaru. Thank you for the opportunity to share my experiences. Actually if it's all right with you, I am going to share them in three regards. One is as immediate past chair of the Employment Opportunity Committee of the American Bar Association. Second is as a practicing attorney representing employers both of which will be brief. Third is as a contract mediator for the EEOC.

Let me begin by saying that having been here in 1999 when the whole implementation program occurred and again when Professor McDermott first presented this study, I am delighted that the program is not only alive and well but has a very promising future with tweaks here and there. But it's steady. It's strong. People believe in it. That's a very commendable result for the Commission.

As you know, the American Bar Association Equal Employment Opportunity consists of plaintiff's counsel, employer's counsel, union counsel, as well as some neutrals. We are fully, all of us, very supportive of the program nationally. And that includes all of our management members which as you might guess are the majority of the members of the committee.

We are firmly of the view that mediation has afforded and continues to afford valuable opportunities for the resolution of charges before the parties incur the rancor and expense of full blown legal proceedings. As is well documented, discrimination claims involve some of the most difficult and sometimes emotional disagreements that exist in the law.

In fact, it hasn't been mentioned here yet but the federal courts have a 30 percent docket of their civil docket that is discrimination cases. And almost uniformly they advise that these are some of the most disputatious disputes that they have not only in trial but prior to trial in discovery disputes and so on. So any time we can divert cases from that kind of process, as pointed out here earlier today, which continues discord and does not bring accord, we need to address.

Mediation conversely offers a unique opportunity to resolve differences by addressing the underlying problems and mutually exploring solutions that work for both parties. That's the critical aspect. For that reason, and as part of our ongoing liaison program between the EEOC and the Committee, we have sought to develop members as volunteer or pro bono mediators available to assist where they are most needed by the Commission.

Sometimes that is in places where you don't necessarily have access, as was mentioned here earlier today in terms of distance. It's not always easy for us to find members in the same places where you have needs, but we are working hard on that and going beyond our membership to other people out there that we can tap.

In addition to what we are already doing, we are ready, willing, and able I hope to help with an expansion of the program as I heard suggested here today to a point in the post-investigation and post- finding stage. Indeed we often find that people are not ready to talk about resolution until they have more information sometimes.

So consequently, there are some real benefits that we believe can be obtained by extending the mediation program to that level. In short, the Committee fully supports the EEOC's mediation program as a valuable and viable means for the resolution of charges and the disputes underlying them.

From the perspective of an employer's attorney, let me just say that I routinely recommend mediation to the clients for a number of reasons. It's a unique opportunity to control beyond destiny. People don't think of it this way, but it is absolutely true that when you can enter a room and decide on what the issues are and what the solutions are both sides have complete control over the outcome. Either side can say no.

They have ownership in the process. You can build a sense for what the issues are, as already discussed here today, learn the problems, explore the possible options for resolutions, and make an informed decision whether or not resolving at that time or moving on is the best outcome for that matter. So it makes both business and economic sense, I think, from the employer's perspective, and that's why I routinely recommend it.

Most importantly, mediation also offers both parties the opportunity to tailor the solution to their own needs and concerns which the court system cannot. As a contract mediator for the EEOC, one of my first matters involved a gentleman who was in his fifties. He had worked for a car dealership. Unfortunately for him, he had diverted a repair opportunity to his son who was competing with their business, not probably a wise move.

It was not a strong age claim, but this guy was on his ropes literally. He and his wife came to the mediation. What he needed more in life than anything else was another job. The solution largely involved the manager across the table, who had no animosity. These guys had been friends in the business for years. He wasn't the decision-maker. He was another person who came with some objectivity.

He said I will make a list right now of 20 managers of car dealerships in this city that I will call to try and help you get another job. That plus a certain amount of money, not a lot, and a couple of other tweaks got that matter resolved, something that could have never been achieved through litigation and something critically important to him.

In another mediation, it was a disability claim. The person could no longer really perform the job that they were in. We spent a lot of time not only at the mediation itself but weeks after that. That's the longest mediation I have ever had as a mediator. It never seemed to end. But after about a month and a half, they worked out a whole program where this person could be retrained into another job they could perform.

Could that be achieved through litigation? Absolutely not. It allowed the employer to go on. It allowed the employee to go on. And it was a very important result for everybody concerned. It wasn't easy. The reason it went beyond the mediation stage was they had to investigate laws. They had to investigate processes, potential trainers, and so on. But the important thing was in both of these instances the system allowed for work to be done on reemployment of the employee involved.

The process also brings a very important opportunity to communicate which I think was indicated here earlier today. In the last mediation I handled, what was critical was at the outset of the mediation. It was two women who had both had age discrimination claims for having been laid off in a reduction in force. They didn't perceive it as a reduction in force. They were extremely hurt.

This was an opportunity for them to explain directly to in-house counsel how hurt they were and all the facts and circumstances. This was their first chance to talk to somebody at the company who truly listened and cared. That was extraordinarily important. Equally important, the employer, the in-house counsel took a moment to say we are really sorry we're here today. This was truly a reduction in force.

This had nothing to do with your performance. Your performance was satisfactory plus. We did not terminate you because of your performance. That also greatly helped to reduce the sort of emotional baggage that goes into any kind of a dispute of this kind and to kind of help clear the deck so then there could be some kind of resolution. In fact, I was told ahead of time the chances of getting a resolution in this matter were slim.

I should make comment that Loretta Fuller (PH) in Cleveland is wonderful at these things. She usually gives me a little tip ahead of time as to what I can anticipate. But we were able to get the matter resolved with the in-house counsel on the plane at the end of the day, but we got the job done. Finally somebody was listening on both sides, and that helped tremendously.

This also was a situation where the EEOC had issued a probable cause finding. And we were able to get it resolved, not without some difficulty and the fact that the employer almost went to California when they discovered that somebody from the EEOC would be sitting in the room. But there was complete confidentiality. We worked all of that through. In fact, we were able to again accommodate all of the interests and concerns of the two parties to the mediation itself as well as the EEOC who was also a party and also had their concerns. This can be done, and I think it does demonstrate the wisdom of having it later in the process as well as at the beginning of the process.

In conclusion, we believe that this entire mediation program equally serves the employees, the employers, and the Commission well in providing a unique opportunity in a valuable forum for addressing and resolving real and perceived issues of discrimination in the workplace. Thank you.

COMMISSIONER SILVERMAN: Thank you. Mr. Mallon.

MR. MALLON:

Thank you, Chair Dominguez, Vice Chair Earp, Commissioners Silverman, Miller, and Ishimaru. Thank you for inviting me to participate here today. As the charging parties will tell you, there are two reasons why I file an administrative charge with the EEOC. The first reason is because I have to. Of course, I am legally required to do so. It's my client's ticket into the court system. The second reason is however because I want to, and I want to because of the EEOC's mediation program.

Baltimore's mediation program has been a resounding success. In fact, over 80 percent of my cases have resolved during the mediation or using the mediation process. Why is this? I attribute the success rate to six reasons, and not coincidentally I will be echoing some of the same comments and remarks of Ms. Royal.

And what are these reasons? First is the commitment, dedication, neutrality, and the integrity of the ADR coordinator. If management or the employee feels that they are wasting their time or being treated differently than the other, then the mediation is doomed from the start. Fortunately the Baltimore District has been blessed with an ADR coordinator who possesses the commitment, the dedication, and the integrity to carry out the process. And I believe Ms. Royal also echoed that same remark, and obviously she was speaking from the employer's perspective.

Second is the ability to fashion a settlement that suits the parties. Mediation allows for an array of remedies that are otherwise unavailable. And I have always found that an important part of the settlement process is to allow the parties to leave with their dignities intact. Mediation allows for this to occur.

Third is the willingness of the parties to share information so that each party may assess his or her client's risks. I recently mediated a sexual harassment case. Prior to the mediation, I had valued the case fairly high in the six figure range. But as a result of the employer sharing information with me that was not otherwise available to me, I was able to caucus with my client and explain the ramifications of the documents presented. I reassessed the value of her claim. She was in complete agreement and understood the reasons behind my reassessment. And the case ended up being settled.

The fourth reason is a showing of good faith on behalf of management and the employee. And in fact, one of the few times in my experience where mediation has failed is when opposing counsel came to the mediation to try to engage in an informal method of discovery. He was not there in good faith to attempt to resolve the matter. As a result, I felt it necessary to terminate the mediation.

The fifth reason is knowledge of the law. Needless to say, it helps tremendously when both parties are familiar and knowledgeable about the law because they are then able to dispense good sound legal advice to their clients. Finally - and this I have found to be critical - management must know that the charging party is willing to proceed to litigation if mediation fails. The expression all bark and no bite comes to mind. If management does not believe a charging party will continue to pursue the matter - and especially where a charging party has already been terminated - it is less of an incentive for management to try to resolve the matter.

It's just a practical concern. And it's an issue that needs to be dealt with. Management must believe that if the party is not willing to go forward then I believe mediation loses a bit of its appeal from my perspective. The way I take on cases is I kind of conduct my own due diligence before I accept representation of a client so I have a fair idea as to the strengths and the weaknesses of a claim. I often will place opposing counsel on notice of the strengths and weaknesses prior to mediation. I believe that does facilitate the process.

When these six factors are present, the likelihood of a satisfactory resolution is greatly improved. And in closing, in it's current state, my clients have found the mediation program to be an extremely effective arm of the EEOC. And I believe the agency will only stand to benefit by becoming more mediation-centric. Thank you for your time.

COMMISSIONER SILVERMAN: Thank you both. Commissioner Miller, do you have any questions?

COMMISSIONER MILLER: One question. Thank you very much to both of you. And to Charlie, Mr. Warner, I want to thank you for your leadership at the ABA and with your co-chairs but especially your personal leadership over the years in this particular program. It has really meant a lot to this Commission and to the success of the program.

One of the things that I have been thinking about that we heard a little bit about this morning is as we think about expanding the program, reaching into small businesses and so on, and then seeing the success as we saw demonstrated by Johns Hopkins and ConAgra as examples of universal mediation agreements and thinking about how that might play out with smaller or medium sized businesses, businesses that are not the size of ConAgra for example.

What would you say as a management lawyer about exploring opportunities of going to business organizations? Let's say a local chamber of commerce with people who are members there or Rotary Clubs, people who tend to collect, associations or industry groups, and seeing if there was a way or interest in engaging in either universal mediation agreements or some other mechanism by way in which we can include and create comfort so to speak among small and medium sized businesses that may only get one or two or a couple of EEOC charges a year as opposed to larger, more sophisticated employers that have the infrastructure to understand and in a sense be repeat players at the agency. Any thoughts?

MR. WARNER: Yes, there is an interest problem obviously in joining in a universal agreement if in fact you only ever get one or two charges a year. But on the other hand, most medium sized employers, let's say, of 100 to 500 employees, let's put them in that range. I would think that they would get more than two or three a year.

And so if that were the target group, I would think that that would be very worthwhile. I think through SHRM, through the chamber, through the AMA and various institutions out there the word should be spread about what was said here today. Then they will understand the unintended as well as the intended benefits of the program, as Chair Dominguez just discussed.

That is not something that is well known out there. That simply is not. I think most people have a concern that if they receive something from the EEOC and says why don't you mediate and by the way we're going to also mediate it, they say wait a minute. This is not a level playing field.

Now, there is a perception problem on the first go. I mean even though I know that Professor McDermott's study indicates that those who know about the options do not have any concerns about the EEOC mitigation. But you have a lot of people out there who don't know about it. And I would say that's the majority of the businesses.

COMMISSIONER MILLER: Thank you.

COMMISSIONER SILVERMAN: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Can I just follow up on that? Do management lawyers know about this program? Are they generally supportive? What is the feel out there?

MR. WARNER: If they don't, they have their head very far in the sand. If you are an employer's counsel at all, you have to be talking to them about the Age Act and Title 7 and everything else, all the EEOC processes, and so yes. I think they are generally familiar with it.

How many are directly familiar with it in terms of actually dealing with it is a nice question because as was indicated today you don't need a lawyer. Many of the companies that I represent handle these matters in-house. Or if they go to a lawyer, they go to the in-house lawyer, not the outside lawyer, to handle their charges initially. Other clients of ours, I do all of their charges for them.

So it depends on the particular employer. I would say that most lawyers if not all good employment lawyers know about the program.

COMMISSIONER ISHIMARU: If they know about the program, do they urge their clients, speaking generally, to participate in a good faith manner? Mr. Mallon talked about the problem of people using this as a discovery vehicle. There are obvious benefits to this program.

MR. WARNER: I have done, I think, seven or eight as a contract mediator. There were only two that were a bust. It was in both cases because the employer sent somebody with a bad attitude. I mean it. In fact, I was very tempted to write the president of a major national corporation about how bad the person was that they sent.

(Laughter.)

MR. WARNER: So if you come into the process with an open mind and with the idea that you can accomplish something positive out of this experience, I think, for the most part, it works. If you send the wrong person who comes and as Mr. Mallon just indicated is there to do discovery, which they clearly were in one case, and just to browbeat the other side into submission, literally, then it doesn't work.

COMMISSIONER ISHIMARU: Thank you very much.

COMMISSIONER SILVERMAN: Chair Dominguez, do you have any questions?

CHAIR DOMINGUEZ: I just wanted to echo the sentiments of Commissioner Miller by thanking Charles Warner not only for the contract mediation work but, more importantly, for the pro bono work that you have continued to provide with your perspective and expertise. We very much appreciate that. Certainly Mr. Mallon, those six points that you share with us are extremely helpful and very practical. We will make sure that we will continue to advance that perspective. We often hear from the plaintiff's side. So this is very much appreciated.

COMMISSIONER SILVERMAN: Vice Chair Earp.

VICE CHAIR EARP: I will attach myself to the Chair's comments. Thank you both.

COMMISSIONER SILVERMAN: I have a question. As you may or may not know, we train our inside mediators to follow the facilitative model rather than the evaluative model. As an experienced attorney, Mr. Warner, I'm wondering whether or not you use this approach. I'm also wondering what both of your thoughts are on this and whether we should expand our training to capture both approaches.

MR. MALLON: If I may, I find the facilitative approach to be the best approach for this reason. I believe that it's critical that both sides believe that the mediator is neutral to try to facilitate the process. In the cases that I am involved in, they are represented obviously. It's the job of the attorney to advise them and evaluate their strengths and weaknesses and to provide that legal guidance.

But I have been in mediations in state court, where they use the evaluative model, and I don't believe in it because I believe one side feels slighted from the get go. It immediately damages the mediation process.

MR. WARNER: In my experience, sticking with the facilitative predominantly seems to be the way to go. But then in any caucus, particularly with good counsel on both sides - this happened in my last mediation - I was asking the hard questions or tried to, sometimes without the client present. Sometimes we would go out in the hallway and say, have you considered the following and that kind of thing. I feel it's helpful to them, to their clients, and to the process to do that.

The other comment I would make is in the last two mediations I did, both of which took all day, by the way, and people did not get serious until 3:00 in the afternoon. I don't know what there is about 3:00 in the afternoon. They were tough all day. One was sexual harassment, that one I talked about last. In both cases, I made a mediator's recommendation of a resolution, which stuck.

So you do a facilitation up to a point, but then if you see that there's a chance of finally getting to yes on both sides -- In the last one, I had been told the absolute maximum that the employer would go and the absolute minimum the employee would go and there was still a gap. There was still a gap, but we closed it.

There are times when I think that the mediator can put themselves a little bit more into the process in terms of raising questions. Have you considered this? Have you considered that and so on and so forth. I agree with Mr. Mallon that really if you go too far off the facilitative -- I'm an employer's counsel normally, and I want to make sure that both sides have confidence in me as a mediator. Otherwise the whole thing is going to break down. That includes the plaintiff's counsel. If the plaintiff's counsel thinks that I'm coming at this purely from an employer's perspective, I will lose credibility, and it won't be helpful to the process.

Panel Three:

COMMISSIONER SILVERMAN: Thank you. That was incredibly helpful and all of your testimony. If there's no further questions, we will move to the first part of Panel 3. Our final panel today is Panel 3. This panel will focus on how the EEOC mediation program can be enhanced with insight provided by users of the program as well as EEOC field staff who implement the program. We have also broken Panel 3 into two parts.

I am pleased to introduce the first grouping of the Panel 3 participants. First, we have Ann Reesman who is General Counsel to the EEAC and no stranger to those of us at the Commission. She has been a strong supporter of our mediation program since its inception. I believe she worked closely with Commissioner Miller during the task force phase.

Secondly, we have Yvonne Gloria-Johnson who is the ADR coordinator in our Phoenix District Office. I had the great pleasure of meeting with her last year when I was in Phoenix. I am pleased that she was selected to represent the agency's ADR coordinators here today. So you have all of your colleagues here. It's a little bit of pressure but I know you can handle it. Question and answer period will also follow this panel.

Commissioner Ishimaru, we're going to start with you. Do you have any questions for this panel? I'm sorry. I jumped ahead.

(Laughter.)

COMMISSIONER ISHIMARU: Ann, I thought you were brilliant.

(Laughter.)

MS. REESMAN:

Thank you. Good afternoon, Madam Chair, Madam Vice Chair, Commissioner Miller, Commissioner Silverman, Commissioner Ishimaru, EEOC staff and guests and friends and colleagues. I am delighted to be here today. Thank you so much for the opportunity to be here and talk about the EEOC's mediation program.

We commend you for making mediation the center point of the Chair's five point program and of your charge processing. We think it's extremely important. We also commend you on the success that you are enjoying to date. We have watched it with much delight. I think the mediation program has become a beneficial and necessary and permanent part of the EEOC's charge processing. To the extent that we have played a small part in that, we are very glad.

For those of you who aren't familiar with us, EEOC is a national organization of about 230 large employers. We were started in 1976. Our goal is to promote sound approaches to the elimination of employment discrimination. One of which of course is the use of alternative dispute resolution methods to resolve problems before they turn into real battles.

We have, of course, been a supporter of the EEOC's mediation program since the very first pilot in 1991. Over the years, we have provided comments every time you have asked and sometimes when you haven't. In 1995, when the then Chair appointed the ADR task force, we began our own ADR action committee to provide feedback.

In fact, our very first guest was Commissioner Miller, who then chaired the ADR task force. He was kind enough to come and see us and listen to what we had to say and provide us with information on what the task force was doing. That was just terrific.

Throughout the years, we have promoted the program every way we could by providing information on the program to our members, to publicizing its successes, to letting them know when the uniform mediation agreements first came out, letting them know that those were available and what the advantages of those might be. We featured EEOC staff on our programs, our membership meetings, and our ADR forum, which has grown into an annual event.

We have even added a section on EEOC mediation to our own training program on investigating and responding to discrimination charges. We have been very grateful that the Commission has been willing to send Steve Ichniowski(PH) over to teach that part of the program for us. It provides, frankly Steve, who is a great ambassador for your program, with a captive audience of people who actually handle charges for large companies. It gives him a terrific bully pulpit to explain how this program actually works.

While I'm at it, I would like to thank Polly Choate, Irene Hill Nick Inzio (PH), most of the commissioners, of course, and also Steve for always being available to talk to our members about the mediation program. We are delighted with the success so far. We may have been as happy as you were when Professor McDermott's first study came out saying that if given the opportunity over 90 percent of employees and employers would be repeat users of the program.

To me, that was the most important statistic, the idea that folks would come back. I think that shows that the program is really working. I want to thank you for always being responsive to EEAC's ideas and concerns and suggestions along the way. We do have a pipeline into the staff where we hear of a specific issue we can pass that information along. It gets directly where it needs to be.

We hope we have been able to help the program work a little bit better. As you look to the future, we are very grateful for the opportunity to provide, again, some suggestions and comments on how the existing ADR program could work better. We also have some suggestions for expanding it.

To give respect to the existing program, which as I said we think is being very well-run, I think careful attention to the details that have made it successful are going to be very important in the future. In other words, the things that you are doing right, which is most of them, keep doing it.

Things like the firewall is so important to the credibility of the program. Maintaining a very clear distinction in every possible way between the mediation arm and the investigation arm of the agency, that's so important. All in all, your folks have done a very good job of doing that up to and including situations I understand where the mediator is actually a separate space. There's a physical separation as well.

I just encourage you to maintain those kinds of basics. The continued use of qualified mediators, that took some doing as you got going on the process. From Professor McDermott's research, it shows that has worked both with internal and external mediators.

I am grateful that the commissioners recognize how important that is because the use of qualified mediators is crucial, again, to the credibility of the program. Those of you who have consumed consumer products know one bad experience not only loses the company one customer but can lose 20 others that they talk to. So the need to have a qualified mediator there every single time is really important.

The third thing I want to emphasize in response to Commissioner Silverman's question is we think the facilitative model is extremely important again for credibility of the program. It's the same reason that both of the gentlemen who proceeded me here put forth. If one side or the other thinks that they are being pressured, many of these folks, especially the lawyers, have experience.

The lawyers have experience in court. Frankly, the HR folks have experience with the state FEP agencies with something that was called mediation. When they got there, it turned out it wasn't mediation at all. It was a headbanging settlement conference. So I think that the more facilitative that EEOC investigators stay, the better it is for the credibility for the program.

I know you will do this. I suggest you continue to promote the universal agreements to mediate. I think it is important, for all of the reasons that you already know, to buy into the process early and often. Just as per many of the reasons that Linda Workman from ConAgra mentioned, it's very beneficial.

We would like to commend you on the pilot referral back program. We think that's terrific. We thought it was a good idea ever since we endorsed it to the task force back in 1995. I understand the pilot is working. We strongly recommend that you expand it nation-wide. In fact, I would suggest that you consider making deferral to employers appropriate ADR processes a routine part of your charge processing nation-wide.

Many of our members, as you know, have seasoned ADR programs that are working very effectively. A lot of these are programs that have many levels to them, beginning with something very simple like an open door program, moving up through, perhaps, internal mediation, perhaps a peer review system, some sort of management review, up to and possibly including arbitration.

Many of these programs have been very, very effective and are fair to the employees as well. Using these programs as you are in the pilot is really a win-win proposition for the EEOC. You are taking advantage of resources that are already there and that are already proven. So we would strongly recommend that you would consider both expanding the pilot to include all of your offices as well as to include more employer ADR programs.

We understand that you are considering expanding the mediation program. First of all, we are very glad you have expanded it to the conciliation stage. I think that's very important. We understand you might be considering expanding it to the post- conciliation stage as well such as after conciliation has failed but before EEOC litigates. I think that's a good idea as well.

It's one last way to stay out of court for both parties., and if mediation hasn't happened, for whatever reason up to and including that point, it can't hurt to do it one more time given the Commission's mandate from Title 7 to try to resolve cases through conciliation, conference, and persuasion. This is certainly the conference and maybe persuasion part. So we would like to recommend that as well.

In addition we'd like to - because I know Commissioner Miller is expecting to hear this from me - in part of expanding the ADR program, we would like to see the Commission reconsider opposition to mandatory arbitration. I think there's room for that in the world. A lot of the world is using it already. There are, as I said, fair programs out there that are fair to both sides and even-handed. So I think that's key as well.

I did just want to touch on Professor McDermott's third study because I thought the results were fascinating. I was very pleased to find that it's not something wrong with your program that is causing employers -- and I'm sure you were too, that is causing employers not to participate. It has more to do with the merits of the charge.

I would like to endorse what folks have said before me today about the importance of publicizing the availability of the mediation process beyond that very first communication and continue to invite people to mediate, especially during the key turning points, like when the EEOC has decided yes there is reasonable cause or it's definitely looking that way. Information turns up in EEOC's investigation that the employer that may not be privy to that didn't turn up in the employer's investigation. Folks may change their minds. We remain happy to do anything we can to help EEOC promote the mediation program. I thank you again for the opportunity.

COMMISSIONER SILVERMAN: Thank you. Ms. Gloria-Johnson.

MS. GLORIA-JOHNSON:

Good afternoon, Chair Dominguez, Vice Chair Earp, Commissioners Miller, Silverman, and Ishimaru. 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. 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 from the program. I will also describe the benefits of mediation for those charging parties and employers.

At the same time, my comments will address some of the concerns stated by employers for not mediating charges filed with the EEOC that we heard Professor McDermott discuss this morning. ADR coordinators feel 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 the mediation conference. Other successful programs use panels of contract mediators and employer and charging party representatives who meet 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 last study confirms what we coordinators and mediators hear every day 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.

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 a speaker function on the inexpensive, basic telephone located in the mediation conference room. It was found 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 the charging party with used computer equipment, changing personnel records to reflect a voluntary resignation, and neutral references to perspective employers. In another case, a charging party with a progressive disability was allowed to apply for disability insurance available only to higher level employees, provided the 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. During the course of another mediation, the charging party revealed that she had been so emotionally distraught by the charging events surrounding her discharge that she postponed her wedding until the charge was resolved. The matter was settled when the employer, who was in the travel business, agreed to provide complimentary transportation and accommodations for the charging party's honeymoon.

(Laughter.)

MS. GLORIA-JOHNSON: Another charge was resolved when the charging party and the 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, agreements to not challenge unemployment claims, letters of recommendations, and 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.

Over the past few years, approximately 50 percent of all mediated resolutions included non- monetary benefits and 13 to 20 percent 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 requires a skilled mediator to keep the parties focused on finding solutions rather than finding fault and the willingness on the part of mediation participants to be persistent and patient, to be flexible, and to think outside the box.

While there are many employers say they want to send a message to their employees that they will not mediate charges of discrimination, there are many other employers that 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 in the future.

Both charging parties and employers tell us that the mediation conference improved relationships and opened the lines of communication between them. 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 the charging party, demonstrating a high degree of trust in the process and gaining the respect and trust of the charging party.

Charging parties frequently 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 participation feedback continues to merit 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 that 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 in the future.

A dismissal does not necessarily mean the conflict is over. If the charging party is still employed, their work performance or conduct will sure 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 more than 35 years. I have seen many different charge processes and 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.

COMMISSIONER SILVERMAN: Thank you. Commissioner Ishimaru, I was just trying to give you some warning. You are the new guy.

COMMISSIONER ISHIMARU: Thank you, Commissioner Silverman. Ms. Reesman, we heard earlier today that some members of smaller businesses had a perception that the process may be unfair and may be stacked against them. Do you find that with your membership at the EEOC?

MS. REESMAN: Not the process in particular. We have generally gotten very good feedback from our members. Every once in a while, we hear that there's been a particular issue with a specific office or a specific mediator. Those issues we have passed on to EEOC staff for whatever use they have been wanting to make of that information. But generally speaking what I have heard is that the process is perceived as fair.

COMMISSIONER ISHIMARU: Is the participation rate higher than what our overall employer rate is? Do you know?

MS. REESMAN: Among major companies?

COMMISSIONER ISHIMARU: Yes.

MS. REESMAN: I don't know. I would doubt it, really for the same reason. I think Professor McDermott's study really across the grid suggested employers are making an informed decision not to mediate because they don't feel that the case has merit and that's a reason not to go, especially considering they have already done an independent investigation which is more indicative of larger employers I would think.

COMMISSIONER ISHIMARU: Thank you very much.

COMMISSIONER SILVERMAN: Chair Dominguez.

CHAIR DOMINGUEZ: Again, to thank Ms. Reesman not only for your personal advocacy and -- the mediation program and in fact helping in getting it to where it is today but also to EEOC for providing the platform that allows us to come in and advocate and promote the program. Thank you very much for your comments.

Certainly to Yvonne on behalf of our commissioners and as a representative of the ADR cluster, I just want to thank you and all of your fellow ADR coordinators. I spent over two hours the other day on a conference call with them. And I tell you, we can talk about outreach.

We can talk about communication, but it really starts with ADR coordinators and the support and the needs that they have and how we can help them meet those needs because we have one bad experience with an ADR coordinator and we are going to lose everyone. We want to be sure you have everything that you need. Thank you for your energy, your dedication, your passion. We are going to do everything that we can to give you the tools that you need.

MS. GLORIA-JOHNSON: Thank you.

COMMISSIONER SILVERMAN: Vice Chair.

VICE CHAIR EARP: Nothing except to say you heard it out of the mouth of the chair. We are going to try to do everything we can to give you the resources that you need. I think that says it all. I have nothing else.

COMMISSIONER SILVERMAN: Commissioner Miller.

COMMISSIONER MILLER: Let me get my list, right. Yesterday evening I spent some time with the ADR coordinators and Ms. Gloria-Johnson. We had a really good conversation about lots of different things. That was very useful, of course. You know where to find me and I know where to find you. Again, I just want to reiterate that not just in recent years, not just on certain issues or selected times but really over the course of the past ten years that I have been here both, you personally and the EEAC has been a real positive force in engaging in the employer community. I really appreciate that.

COMMISSIONER SILVERMAN: Ms. Gloria- Johnson, as Maurice Wexler will explain later, our ABA work group found that most attorneys surveyed - and mind you these were attorneys - would prefer it if the parties were able to select their own mediator from among the internal mediators working at their office. In your opinion, is this workable? What are the advantages and disadvantages of allowing this to occur?

MS. GLORIA-JOHNSON: Well, it probably is workable. But I think all of the mediators that we use, both internal and external, are equally qualified. When I get a request - and I have received requests - I will ask why. It's usually from attorneys asking for an external contractor. I will ask why. They will express their reservations.

I will ask them to take a chance, mediate with one of my internal mediators. I will usually put themselves in that spot and try to address their concerns during the course of the mediation and found out from them why is it that they prefer an outside contractor versus an internal one.

COMMISSIONER SILVERMAN: Are they more often than not people who haven't used the program before?

MS. GLORIA-JOHNSON: It's mixed. There are some who have and others who have just heard externals are better than internals. I think in the end people will find that our internal staff are just as qualified as our external mediators.

COMMISSIONER SILVERMAN: How can we encourage and attract more employers who apply to our referral back program?

MS. REESMAN: Publicity. We've tried to publicize it as much as we can. If there is any way that you can publicize it as well, whether it's through the website or as something that goes out with the notice of the charge, any communication that you have with employers, I would say this is all about the communication.

COMMISSIONER SILVERMAN: If there are no further questions, I want to thank you both for your participation today and for your written testimony as well. The final grouping of panelists can now move to the table. Last but not least.

I'm pleased to introduce the second grouping of Panel 3 participants and our last panelists in today's meeting. Maurice Wexler is a shareholder in the Memphis Office of Baker, Donelson, Bearman, Caldwell & Berkowitz. I have also had the pleasure of working closely with him on the ABA EEOC mediation focus group over the last year and few moths. We are also pleased to have Peter Phillips who is the Senior Vice President of the CPR Institute for Dispute Resolution. A question and answer period will also follow this panel. Maurice.

MR. WEXLER:

Good morning, almost afternoon, Madam Chair, Madam Vice Chair, Commissioners Miller, Silverman, and Ishimaru. It is a pleasure to be with you this morning. I looked at your agenda and I saw that the conference ended at 1:00 p.m. So if you want to, you can certainly leave and I will keep talking to myself which is what I do at home all of the time.

(Laughter.)

MR. WEXLER: It is a pleasure to be here this morning. I appear this morning as a member of a focus group, which was formed from a conversation that I had with the Chair in the Spring 2002 as a consequence of my own experience in the mediation program. The focus group consists of a number of distinguished colleagues, not the least of whom is our esteemed leader, Commissioner Silverman, who has just been wonderful to work with.

It also includes Professor Christine Cooper from the Loyola University School of Law in Chicago. I might add that Professor Cooper has been quite ill. I heard from her this morning, and she seems to be on the road to recovery. I am so pleased to hear that.

Other members include Gloria Plutella, a member of Seyfarth Shaw in Houston, Texas whose work is primarily that of a neutral, William Hauton, a distinguished member of the plaintiff's bar from New York, John Rosen, a colleague of mine who is a distinguished member of the Union Bar in Seattle, Washington, and Laurice Royal, Senior Counsel Labor Employment for Johns Hopkins, who you heard earlier today.

In my materials and papers - copies of which all of you should have by now - there is a lot of text which I won't disturb you with or bother you with this morning. I would like to get to the point of my invitation this morning, which is a survey which was conducted earlier this year and put together by the members of our focus group with the assistance of Ms. Hillary Newman who did yeoman's work in assisting us in structuring questions and putting it into a format which could be easily responded to. Amy Habib, who is a special assistant to Commissioner Silverman, was also of incredible help and just did wonderful work to help us. So I thank her as well.

Let's get to the point of the survey. It was distributed in cooperation with the American Bar Association Committee on Equal Employment Opportunity which is a committee of the labor employment section of the ABA. When I mention ABA, that's what I'm talking about, the labor employment law section and its EEO committee.

The current copies of this survey were distributed to all the registrants of the meetings of the EEO committee, the Alternative Dispute Resolution committee, and the Committee on Individual Employee Rights and Responsibilities. After that, we then, with the cooperation of the labor employment law section, distributed by email to all of the members of those three committees nationally. So that was our group of targeted respondents.

The responses were interesting. If I can, I would like to get to those in generalizations that we had gleaned from the responses. And I do want to remind you that these are very preliminary results. Our focus group has not had the opportunity to study them with any deliberation. We haven't had a chance to discuss them internally. So I offer them to you with the understanding, which you will acknowledge by staying in your seats, that they are preliminary and they are subject to some modification. I see nods of acknowledgment from some of you but not others.

(Laughter.)

MR. WEXLER: Here are some of the early findings. First, the respondents were from all over the nation. Most of the respondents were counsel to management. Approximately two-thirds of those responding have accepted at least one offer of mediation since January 2000.

By the way, we made an effort to structure within ourselves that those who were respondents had been involved with the handling of at least one charge either individually or by way of their firms or labor organizations or other entities from the period of January 2000 to the time of the survey. We wanted to be sure that it had that relevance.

So about two-thirds of those who had responded had accepted at least one offer of mediation. And from preliminary analysis, it appears that of those accepting the invitation to mediate, approximately 70 percent reported containing at least one mediation. From our preliminary analysis, it appears that at least 62 percent of the survey respondents had charges that were resolved either during or from mediation. That's an important number.

We also noted that with respect to the categories of charges in which respondents had represented clients in connection with the EEOC mediation program, the most frequent categories involved termination issues. The next most frequent category was promotion claims followed by failure to hire charges. And as you would expect, the principal bases of those categories were claims of race and sex discrimination.

It appears that if mediation successfully resolves a charge that resolution most often occurs during the course of the mediation rather than afterwards. However, that's not to say that mediation itself does not play an important role in the successful resolution of cases following the completion of the formal mediation process because it does make a significant contribution, speaking from my own experience that mediation opportunities also provide valuable employee relations. We're almost providing an incubator for creative solutions to sometimes very knotty workforce problems presented by the charges and exposed through mediation. That is a very important unintended, or perhaps intended, consequence.

As you would expect, the model with respect to satisfaction with the mediation process -- On either extreme are those that are very satisfied or very dissatisfied. In the center, you will find those being somewhat satisfied more outweigh the number of those somewhat dissatisfied. It's human nature, sort of a bell curve. If you look in the mirror, you might see a bell curve in terms of your own emotional responses and experiences.

Preliminary results seem to demonstrate that the better the perceived skills of the mediator, and I emphasize perceived skills, the greater the satisfaction with mediation. To us, this clearly suggests a strong correlation between a high level of mediator skill and the charge resolution by way of mediation.

That observation appears to be validated by the results reflecting that perhaps the most important reason for the declining of mediation is doubt about the quality of mediators. Other reasons include a belief that the charge will be found to be without cause, the party declined the mediation believing there was no merit to the charge, respondents believe that they must offer money to resolve the charge, pressure will be applied to settle cases that are without merit.

The availability or the neutrality of the EEOC employees as mediators was not in the top five reasons for declining. There are other reasons, which we will ultimately publish after we have an opportunity to further discuss the results among ourselves.

Lawyers with mediation training and experience with the law of employment discrimination are most preferred as mediators followed by non- lawyers with mediation training and experience with the law of employment discrimination. It is also preferred that the mediator not be an employee of the Commission. With respect to the selection of the mediator, allowing parties to participate in mediator- selection is much preferred.

This however implicates issues related to the handling of situations in which the parties cannot agree with respect to a mediator selection as well as situations involving one or both parties not having the benefit of legal counsel. Now, the discussion of this issue of course - and I'm referring to mediators - is eliminating under or poor performers as well as dealing with the issue of maintaining a reasonable workload for mediators both contract and non-contract.

With respect to mediators providing a case evaluation to the parties, it is preferred that they do so after meeting with the parties. Respondents prefer that mediation be offered shortly after a charge is filed and before a position statement is submitted or administrative investigation begun. Respondents believe that legal representation during mediation is at least somewhat important which raises the question of dealing with parties to mediation who are without legal representation and who are much like pro se litigants in the judicial arena.

According to the survey however, most respondents express an absence of willingness or undertake a pro bono representation of either charging parties or respondents. Now, my topic is looking at the mediation and charting the future. Of course, to do that you have to learn from the past, understand the present, and then you have to crystal ball.

What do these preliminary findings mean? Well, again, I am emphasizing that they are preliminary. Given that 62 percent of the survey respondents had one or more charges resolved either during or following mediation, it is obvious that the continued value of the mediation program seems clear, not only with respect to benefitting the parties involved but also assisting the management of the Commission's workload as well as an unintended benefit, perhaps, is assisting the management within the judicial system to which charging parties dissatisfied with the outcome of their charges often. I had a casual off the record conversation with a federal district judge who is applauding your program because of the difficulty that the courts are facing with pro so litigants.

I see the red light is on. Does that mean stop? I will in just a minute. It is clear that mediation skills are directly correlated with successful mediations. So evaluating the training of mediators and developing national standards with respect to mediator training would be worth consideration.

Additionally, individual performance evaluations of mediators should be considered. Then the Commission should consider developing a process by which the parties who wish to do so can participate in selecting mediators, recruiting and assigning mediators. The Commission should take into account, if they can, that the survey suggested attorneys or non-attorneys with mediation training and experience in employment law are preferred.

Then undertake a comprehensive -- and this is what I call a key proposal is undertake public relations with your partners such as the ABA and others emphasizing the multi-lateral benefits of mediation while dispelling some of the perceptions and myths that lead to the denial of invitations to mediate. Does mediation have a future at the Commission? Absolutely. Can the process and the trail of acceptance be improved? I think that's obvious. The answer is yes.

In closing, I want to thank you for allowing me to discuss the Commission's mediation program. It is undeniably worthwhile and a significant benefit to the Commission's stakeholders and to the purposes of Title 7 to which all of us have been committed and to all of the other statutes enforced by the Commission. Thank you so much. I regret that I have run a few minutes too late, and I apologize for that.

COMMISSIONER SILVERMAN: Thank you. Mr. Phillips.

MR. PHILLIPS:

Thank you very much. Again, I am very grateful for the opportunity to meet with the Commission. It's particularly gratifying to be able to join the voices we have heard congratulating you on your mediation program which is an extraordinary accomplishment and I would say a single achievement particularly from a body charged with enforcement to approach in such a pragmatic and problem-solving way your legislative mandate. You are just terrific.

I'd like to leave with you the statement that I have prepared in the assumption that you have had or will have the opportunity to read it and instead depart from that to summarize what is in there but more importantly I hope to try to make a bit of a challenge for the Commission in the future. The CPR Institute is a non-profit which was formed 25 years ago by corporate general counsel in an effort to act as a think-tank to spearhead more rational and more economically justifiable ways of handling conflict.

Most of that is business to business conflict. We deal with larger and stranger issues. But certainly the committee of ours that is most long- standing and most active is our Employment Disputes Committee. On that not only are representatives of law firms and corporations who represent employers but also Wayne Outen (ph), Nicole Zikloski (ph), and other leading lights of the plaintiff's bar, Professor S. Striker (PH), Professor Lipski (PH) from Cornell.

It's an effort, really, to create an articulation of best practices in this area. And last year we compiled We've also obviously have the terrific privilege of having both Chair Dominguez and Commissioner Miller recently join us and share with us the work of the Commission in the area. We complied some of the dispute management programs that some of our larger corporations follow. The Committee analyzed those and detected certain trends within them that we thought of particular interest to, not just our group of rather large corporate employers but generally.

Actually Ms. Reesman was referring to this, that it's increasingly the case that employers take upon themselves to look upon workplace conflict as a managerial issue and not necessarily as one of legal compliance and to direct those on the way that's consistent with the mission of the organization. We discovered empirically what happens with these cases. You have a tremendous effort to ask employees or even require employees to engage in an initial level of problem identification and discussion and resolution.

And there are all kinds of ways companies approach that. If they are unsuccessful, they go on to mediation. Mediation is not the first step in problem- solving for employment disputes in the private sector. If mediation fails, they go onto arbitration. That arbitration may be mandatory or voluntary. It may be binding or advisory. It may be at the option of the employee. There are all kinds of ways people handle that stage.

But the critical finding was this. Nobody arbitrates anymore. Companies that have those three step or four step systems don't arbitrate. They get rid of their problems prior to mediation. Those that are not able to be handled to the satisfaction of everyone involved are mediated. Very, very, very few conflicts go past the mediation stage. Very few.

So it's a weird situation where you have the bar over here and the courts dealing with the legal implications of mandatory arbitration, but nobody does it anymore. Everybody is dealing with problem solving. That's where the creativity is. That I guess is what I would like to share with the Commission this morning.

I was very intrigued by Ms. Dominguez's suggestion earlier that this might have management implications. Indeed it does. Indeed that is rather the out of the box suggestion that I would like to make to the Commission this morning. Your mediation program is terrific. It is triggered when someone fails to solve a problem. Maybe we have a public policy interest in drawing attention to problem solving skills.

For a company like General Electric or Dupont that follow what's called a six sigma management program or a total quality management program, the filing of an EEOC claim is a management flaw. It's a failure. It means that someone has failed to detect, failed to consult with, failed to identify, failed to listen, failed to use tools, failed to advise upper management. The matter has not been perceived or if it's been perceived it's been mishandled.

There's so much work for all of us to do at that end. Conflict is an expected failing, but disputes are not. Conflict is the inevitable nature of people working together but allowing those conflict to make it up to disputes is a failure of vision, of management, of technique, and of skills.

There are going to be some problems in the workplace that are insoluble. They may express themselves politically. They may express themselves economically. They may express themselves legally. But there are very few of those. There are remarkably few of those, and the ones that really do end up in class action claims, if you reverse engineer those things, it's very unlikely that they could have been resolved in the way that I'm talking about.

But there's a remarkable confluence of interests between people who want to run a company right and legal compliance. Anymore they just match each other. I wonder what would happen if the Commission used its authority, its experience, the respect that those of us who are in this area have for your work, especially your work in ADR, and threw that into the tremendous needs for promotion, training, education, explanation, the creation of analytical reports such as CPR has, gathering the experience of the EEAC, making sure that the membership of SHRM are aware of not just the mediation program of the EEOC but of the entire palette of management opportunities where people can learn better to listen, better to manage, better to resolve problems.

So I guess I am asking the Commission to consider - and you guys know your resources better than I. I'm asking you to consider rephrasing the question, as we say sometimes in mediation, reframing it out of how do you encourage more mediations and into how do we encourage better problem-solving in the workplace. How do we encourage interest-based discussion of conflict in the workplace? How do we manage conflict to avoid disputes? Thank you very much.

COMMISSIONER SILVERMAN: Thank you. Chair Dominguez, do you have any questions?

CHAIR DOMINGUEZ: Yes, Mr. Phillips, I very much appreciate that out of the box thinking because I do think that the role of the Commission is not only just to resolve existing discrimination but to prevent discrimination from occurring. Certainly some of those issues begin by just having disputes and it just erodes into other things.

So I very much appreciate your perspective. I do think that we do have a broader role, which does include, if we can only find merit in 20 percent, there's a whole lot of issues out there that need to be addressed. Thank you very much for that perspective.

Mr. Wexler, thank you for sharing the preliminary findings of your task force. I very much appreciated your taking the call when we discussed this a couple of years ago and for the tremendous support that you have given us. We look forward to more specific ideas that we can all embrace and put in our action plan. I also want to recognize Mrs. Wexler who knows as much about mediation as Mr. Wexler. I'm just kidding. It's very nice to have you hear. Thank you.

COMMISSIONER SILVERMAN: Vice Chair Earp.

VICE CHAIR EARP: Thank you very much both of you. Mr. Phillips, your comments are quite consistent with what I have been thinking as I listen to the witness testimony this morning that this really is a management problem and that one of the ways to get at it is to try to institutionalize structure and appreciation in corporate values for mediation as a part of the larger problem solving approach.

Mr. Wexler, I want to just ask you a question very quickly. We have heard some talk today about mediation early, mediation late in the process, mediation continuously through the process on a continuum. Your preliminary findings seem to indicate that if you get the person there into mediation we get a resolution. So I just wanted to ask quickly, does it seem to matter to you, timing? Did the survey indicate timing as a critical issue?

MR. WEXLER: I think timing is very important, but it doesn't mean that it's all- important. It is important, according to the survey results, to which I might add my own experience of about 35 years of practice or more that the earlier the opportunity for resolution by constructive conversation the better. As I said, all mediations don't result in a prompt resolution but sometimes they are incubators for creative solutions.

So while I think it should occur early on before public parties' positions are crystallized, before significant sums are expended on the Commission side by investigation as well as on the respondent side, not to mention the cost of human capital which is a very important cost that should not be overlooked, the earlier the better. But it doesn't mean forever. Opportunities should be invited along the way if mediation fails. But it should start early.

VICE CHAIR EARP: Thank you.

MR. PHILLIPS: If I may, Commissioner, as a matter of just a systems theory, mediation usually takes place upon impassive negotiation. Constructive mediation classically takes place when the parties are unable to continue their negotiations, are at impasse, and need some sort of value-added resource. For mediation to begin without those negotiations is not ideal.

MR. WEXLER: With respect to Mr. Phillips' comment, the problem however is you don't always have an opportunity to meet face-to-face to resolve it.

MR. PHILLIPS: Exactly.

MR. WEXLER: Often in the employment setting, the charging party is off in one direction, management is off in another direction, and they never have the incentive to get together. That's very critical with respect to the mediation process. It brings the parties together and gives them an opportunity in a constructive environment to see if they can mutually solve their problem.

VICE CHAIR EARP: Well Mr. Phillips, that prompts one other question. We heard support for facilitative mediation and we have heard a little bit about evaluative. I would just like to get your impression of the two and whether or not you think one is more appropriate than another. And do you lean toward transformative mediation?

MR. PHILLIPS: I think they are all great. It reminds me of my son when he was seven asked me, do I play Beethoven loud. I guess he was trying to say I do. But if you are going to play Beethoven, you play some soft and some loud. It's a question of guidance, isn't it? I think any mediator that has had some experience knows there are times when the way to handle it is X and there are times when the way to handle it is Y. I don't think it's a clean duality. I don't think it's a polarity. It's a way to approach parties.

You throw in, sometimes in caucus and sometimes together, the value that you think is useful. I do agree with the comment said earlier which is once in front of both parties, the neutral makes an observation with respect to the likelihood of success then you have expended a certain amount of credibility. And it's the sort of thing that you want to avoid.

VICE CHAIR EARP: Thank you.

COMMISSIONER SILVERMAN: I think I'm going to jump back in here and ask you a question, Mr. Phillips. From your experience with mediation, can you discuss what training and/or continuing education may be appropriate for our mediators, programs or things that you can recommend?

MR. PHILLIPS: I think the first qualification for any mediator is the desire of the parties to engage that mediator. The reason I'm saying that is because I'm going to give you a soft answer to your question. There are some people who never were trained as mediators. Bill Webster came here, is an unbelievably good mediator, but he's not taking an hour of training I don't think. He's a gifted man.

There are ex-CEOs that are listed on my institute's list of mediators who are chosen by parties to sophisticated commercial disputes because of their moxy and their chops. They know what they are doing. They know the business. They know how to listen. They know how to make other people listen.

There are other people who have tremendously benefitted by taking a 24 hour course, a 40 hour course. So there too, do you play Beethoven loud? I'm loathe to say that in the absence of X a mediator is not qualified except in the absence of the parties wanting that mediator, that's tough. I know it's tough to assign a mediator. The parties have to want that guy and trust that guy to do the job.

COMMISSIONER SILVERMAN: I agree with you, but there's only so far we can take it with training. It's intrinsic skills. Maybe it's also with our selections in the future to look at the qualities. I suspect that our mediation coordinators have a pretty good feel for that as well. Commissioner Miller.

COMMISSIONER MILLER: Just with all due respect to Beethoven, having spent my Thanksgiving weekend with my teenage nieces and nephews, I think Eminem is meant to be played loud.

(Laughter.)

MR. PHILLIPS: I wish I had said that to you.

COMMISSIONER MILLER: No middle ground there. I want to thank both of you very much. Mr. Wexler, you have been a champion of this agency for 35 years or so, as long as you have been practicing, and certainly for the past ten years. I know that you know this, but Commissioner Silverman's work on the task force with you she shares with all of us. We are all engaged in that process and find it really very thoughtful and helpful.

I'm glad that you were able to come and share the preliminary findings and look forward to a more detailed report. I think knowing the group that you are polling and getting that kind of feedback is incredibly useful to the continued success and greater success of our program.

Mr. Phillips, I think it's incredibly appropriate - and I'm sure Commissioner Silverman planned it this way - that this ADR meeting is bookended by Professor McDermott on one end in the beginning and you on the other end. We had all these great experts and testimony taken in the middle.

But I think that thinking as you were talking about Professor McDermott's study and then your greater expansion of problem-solving and management implications of ADR in the workplace prompted me to think beyond simply what do we need to do to get more employers to say yes when offered mediation and so on and so forth. My question is how do you suggest to us that we communicate those less than structural or procedural or organizational benefits of mediating a particular complaint?

Professor McDermott said, well, jeez it's nothing really about the structure of the ADR program that's really the stumbling block here. It's other things and values about the charge that's in front of them. I think that dovetails well with the organizational approach that you have. I am curious as how we go and sell that message or how we communicate that message to our stakeholders.

MR. PHILLIPS: If it were five years ago and certainly if it were ten years ago, I would say you have to make sure that people understand that mediation is non-binding and so on and so forth. These days I'm not sure there are a lot of people in responsible managerial positions who don't understand how mediation works and the value that it can add.

I do think that there are a lot of folks out there who see employment disputes as very close to the heart. They react badly to them. They become antagonistic and belligerent very early on sometimes. In that pre-mediation stage, the managerial stage, there's a tremendous amount of work to be done to make sure that there is such a thing in this world as best practices there. There are leaders who do that.

There are corporations Haliburton (PH) was a good example. It's a corporation that not only runs a hell of a good dispute management program but they prepared to go to the ABA and go to ACRA (PH) -- and explain and talk to them about it. Coca-Cola Enterprises has just rolled out a nation-wide program. These people are articulate. They are experienced. I do think that there is a way that we can get the best thinkers together and share what we are doing and create a best practices.

That's what we try to do. But we don't have anywhere near the communicative resources and the chops that the Commission has. I do think that the Commission can be a wonderful convener, a bully pulpit to encourage. To a hammer, every problem looks like a nail. To a lot of attorneys and counselors, every employment problem looks like a charge or a case, and it's not. It's a problem. If that were really understood, if the Commission could help to convey that, I think that you will have fulfilled your legislative mandate tremendously.

COMMISSIONER MILLER: Thank you very much.

COMMISSIONER SILVERMAN: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: I thought this last panel was super. It's given me a lot to think about and kind of put it in a new framework, I guess, with where to go with this in the future. Let me think some more. I will probably have questions for you later. I thought it was very helpful to our thinking, and I thank you for coming.

COMMISSIONER SILVERMAN: With no further questions, I would like to ask the Vice Chair for any closing remarks.

VICE CHAIR EARP: None other than to just say thank you for your time, your commitment, the ideas. I have just totally had my socks blown off today by everyone who spoke. Thank you. I look forward to finding out what the next step is, how we're going to implement some of what you just suggested.

COMMISSIONER SILVERMAN: Commissioner Miller.

COMMISSIONER MILLER: I want to again thank all of the panelists for their remarks, for their work, and preparing and coming to Washington. I just want to say that I am truly pleased and glad that our ADR coordinators have been able to sit here and listen to this Commission meeting. I hope that it gives you as the folks on the ground the kinds of perspectives that we hear as we try to evaluate and think about the program. And I just hope that it opens a continuing dialogue, as was started by Yvonne in her presentation, between the ADR coordinators as a group, as people who really see and know this program with the Commission about this very, very vital and important program.

COMMISSIONER SILVERMAN: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: One thing that struck me in my ten days here is how much of this is driven by the budget or the lack of a full budget to deal with all the problems we have. One thing that I walk away from today being encouraged about is that a lot of this may not be a budgetary issue, although budget obviously drives a lot of this.

I am encouraged by the dialogue that we've had here today from all sides of the table in trying to figure out how to do this better, to do it more, to try to deal with problems before they become big problems. I thank all the panelists for coming. It was very thought-provoking for me, the Chair, and my colleagues.

COMMISSIONER SILVERMAN: Once again, I want to express my complete appreciation for all the panelists for coming here today and participating in our meeting. You all have done a fantastic job. You shared much information and have given the Commission a great deal to think about. As Commissioner Miller said, we are so fortunate to have our ADR coordinators present at this meeting today. This was not my idea, and whoever thought of it was brilliant.

I am looking forward to working with the Chair, our ADR coordinators, my fellow commissioners, and our mediation program team on continuing to make a great program even better in the future. I thank you for your ongoing support of our mediation program and for your thoughtful remarks today. The input will help us as we continue to shape our mediation program to best meet the need of all of our stakeholders.

I thank the Chair again for this incredible opportunity to take the lead in today's meeting on this issue which is so important to me. I also want to thank Susan Murphy of the Chair's office, Mindy Weinstein, Naomi Levin, and especially Amy Habib who gave up her Thanksgiving or a good portion of it given the dates of the emails that I got to work on this meeting. I will now reluctantly turn the meeting back over to Chair Dominguez.

(Laughter.)

CHAIR DOMINGUEZ: As the hour is quickly approaching 2:00 p.m., we have food for thought, but I know we are thinking about food for lunch, aren't we? I, first and foremost, want to thank Commissioner Silverman for her leadership and her tremendous energy and support and cooperation in bringing this Commission meeting to take place this morning. I know she and her team and all of us represented here have put a lot of work and effort into it and commitment. That's what we all share is the commitment.

So I want to thank again all of our speakers. I know you have traveled far to come and be here. This is a legacy. This is something that is going to help guide us for the next several years as we continue to develop the program. So thank you very much for your participation here and certainly to our ADR team. Welcome and we will be talking again soon. There being no further business, do I hear a motion to adjourn?

COMMISSIONER MILLER: So moved.

CHAIR DOMINGUEZ: Is there a second?

COMMISSIONER ISHIMARU: Second.

CHAIR DOMINGUEZ: All in favor.

(Chorus of ayes.)

CHAIR DOMINGUEZ: Opposed.

(No response.)

CHAIR DOMINGUEZ: The ayes have it. The motion carries. The meeting is adjourned.

(Whereupon, the above-entitled matter concluded.)

This page was last modified on January 12, 2004.

Meeting of December 2, 2003, Washington, D.C. - EEOC Mediation Program and the Workplace Benefits of Mediation - Transcript

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PROCEEDINGS