10-Plus Tips for Succeeding in an EEOC Mediation Part Two

By Kathryn Schear

Sep. 12, 2008

I n the first part of this article, I wrote about avoiding the EEOC through the use of neutral, third-party mediation, and discussed some key points to consider before an EEOC mediation. Now let’s talk about the mediation process itself.

Tip Six: ‘Butter up’ the mediator.
    After you’ve decided who will accompany you to the mediation, the next important step is considering how you interact with the mediator. Mediators are neutral, but first and foremost, they are human beings. Many employers forget this, and because of their frustration and anger, they take it out on the mediator. That is not in your best interest.

    One of the most neutral EEOC mediators I know told me recently: “I will go out my way for an employer who treats me well instead of one who comes in with an attitude. I’m not a computer, and I can’t help but respond to how I’m treated. My willingness to pursue resolution when an impasse looms will diminish if I’ve been treated rudely. I want to shut the process down when someone is treating me disrespectfully, rather than give it my all.”

Tip Seven: Despite feelings of resentment and upset, control your emotions over the employee and the charge made against your organization.
    When I reflect on effective employer conduct during the 500 mediations I conducted, I remember one of the employee relations professionals who always maximized her company’s outcome. She achieved this simply by the way she conducted herself during the mediation process. This woman, whom I’ll call “Marie,” started with body language. From the time she entered the mediation room, she conveyed warmth, openness and a genuine willingness to listen to the employee. Marie never interrupted the employee, never became defensive and interacted with the employee by asking thoughtful, empathetic questions. She rarely attended with counsel. She was confident and answered employee questions honestly and thoroughly without being evasive. She never issued ultimatums. She was clear about what she could and could not offer, and was very creative in her ideas for resolution.Most of this employer’s EEOC charges were resolved during mediation. And they didn’t always involve a monetary settlement.

Tip Eight: Try for creative solutions to resolve the dispute. Brainstorm nonmonetary options before attending the mediation.
    I have settled a number of cases by listening to what the parties are not saying and by addressing those unspoken needs. In one case, the employer was strongly opposed to offering the employee any monetary compensation, but the employee was unwilling to withdraw the charge and walk away empty-handed. The employee alleged gender discrimination and was on maternity leave. I suggested that the employer give the employee a gift certificate at a baby store, and both parties were amenable to this suggestion. I have always mediated according to the Mick Jagger principle: You can’t always get what you want, but you get what you need.

    Before attending a mediation, it is crucial to brainstorm with others what all the possible nonmonetary ideas for resolution can be. Don’t come into the mediation expecting the mediator to suggest the solutions. Think outside the box—way outside the box—and come prepared to know what you can offer the employee. Do not, however, assume that telling your side of the story will win an employee over. It’s unlikely that the employee will say, “Thanks! I never thought of that explanation for your actions. I guess you didn’t discriminate against me, so I’ll just withdraw my charge and go home.” Many employers actually attend a mediation thinking their explanations will make the charge vanish. This almost never happens.

Tip Nine: Let go of needing to be right and keep focused on the long-term goals you want to achieve.
    One of the greatest barriers to resolution is not being able to let go of feeling that you’re in the right. This is incredibly difficult to do, but try to keep focused on what you wish to accomplish, not on that you believe you’ve been wrongfully accused of something. Ask yourself: “Is this an employee I want to continue working with?” If so, try to use the mediation as a time to mend hurt feelings and clear up misunderstandings. Even if you’re dealing with an employee who will never return to your workplace, do you want to risk not settling the case during the mediation? Do you want to endure more months of an investigation, or is it in your best interest to put it behind you today? Protracted conflict is rarely in a company’s best interest. A good mediation is when the parties vent their concerns, figure out a way for most of their interests to be satisfied, and are able to move on.

Tip 10: Don’t call it quits prematurely.
    When you feel like giving up and calling an impasse, don’t! A lot of cases get settled when everyone is tired and frustrated.

Tip 11: Recognize that it’s not over when it’s over.
    After a mediation that has resulted in a withdrawal of the charge and produced a negotiated settlement agreement, don’t assume the matter will not resurface. If the mediation involves a current employee, make sureto check in with this employee a few times after the mediation. You may even want to put in the agreement that certain parties will meet in, say, 30 days to ensure that nothing has been omitted from the agreement, and that nothing new has arisen or been missed since the day of the mediation. Additionally, remember that any agreed-upon terms need to be communicated if management changes.

Bonus Tip One: Recognize common problems before they erupt into more protracted conflicts.|
    As the mediation is coming to a close, it is a good idea to learn ways to avoid returning to the EEOC. Having spoken to so many employers about their simmering pots, I know them when I see them. Here are some common (and actual) situations that can bring you back to the EEOC if you don’t deal with them:

1. There’s a change in management. The new supervisor follows the organization’s policies and guidelines, but the previous managers were more flexible. This leads the employee to think he is being treated unfairly by his new supervisor.

2. An employee with a history of performance issues has had several supervisors, but some of these supervisors have not completed a written evaluation of the employee. The last performance evaluation is more than 4 years old.

3. A supervisor is frustrated with his manager because he has to clean up after the manager’s outbursts toward the line staff.

4. A supervisor is disengaged at work because she is not being supported by her manager when it comes to dealing with a disruptive employee.

    All of these situations offer the employer an opportunity to seek an outside contracted mediation option to avoid a more disruptive outcome. Many employees feel it is important to go to management in HR, employee relations or equal employment opportunity to maintain a record of the problem, and I would support this approach almost 100 percent of the time. After the concerns have been documented, most of these situations would benefit from mediation, where concerns can be vented, patterns, if any, can be detected and new ways of interacting can be discussed. For this to be effective, both parties have to be able to trust the mediator and recognize their mutual interest in resolving the problem.

Bonus Tip Two: Develop a comprehensive approach to conflict and consider offering employees an additional option by having an internal dispute-resolution program.
Some of the employers I speak with talk of having a more comprehensive approach to conflict resolution. Employers such as the EEOC and Coca-Cola have decided that the best way to accomplish this is by starting their own internal dispute -resolution program with outside mediators conducting the mediations. This allows all parties to feel that the mediator is neutral and can be trusted to hear all sides fairly. An attorney at a leading national law firm reported that two years after one of his clients started an internal dispute resolution program, its outside legal expenses were reduced by 60 percent.

    Some equal employment opportunity managers I have spoken with measure the morale of their workplace by the number of EEO/EEOC charges brought against them. I don’t believe that is an accurate barometer of the health of a workplace. The more important question to address is whether your employees have a meaningful way to resolve the concerns they are having at all levels among themselves.

    With the Employee Free Choice Act legislation pending, employers and their counsel can no longer afford to let these simmering pots continue. If attorneys and HR management continue to deny their own limitations in addressing the employees’ concerns, the employee will feel powerless. And unions will attempt to fill that void.

    A better approach is to find proactive ways to take your simmering pots off the stove and create a workplace environment where employees are fully engaged.

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