Today, Texas employment lawyer Chris McKinney discusses the EEOC mediation process and explains how it works.


Hi everyone, this is Texas Employment Rights Attorney, Chris McKinney. Today, we’re talking about the EEOC. This is a video in our continuing series about the Equal Employment Opportunity Commission and how their investigation process works. Today we’re talking about the EEOC Mediation Process. Now in a prior video, we talked about what happens when you file an EEOC charge with the Equal Employment Opportunity Commission. And we talked about that after you file that charge, one of the things that happens is the agency sends you this document, an Invitation To Mediate. And as we discussed in that prior video, all this document is asking is whether or not you would be interested in voluntarily mediating your case with the EEOC’s Mediation Unit. If both the charging party, that’s the employee and the responding party, the employer, agree to mediate their case, then the EEOC will take that EEOC Charge of Discrimination out of their investigation unit and they’re gonna move it over to the mediation unit. So let’s talk a little bit about what mediation is and how that mediation unit works. So mediation is essentially a process by which a third party mediator who doesn’t have a dog in the fight, as it were, is not on either side of the dispute, sits down with both parties and tries to arrive at an agreed resolution or settlement to the EEOC charge. Some people get confused between the word mediation and the word arbitration. These are two very, very different concepts. So it’s important not to mix those up. Mediation is a voluntary process by which both parties agree to sit down and see if they can work out their differences. Arbitration is something that the parties usually enter into by contract. And it takes the place of a jury trial. In an arbitration instead of a jury trial in front of your peers, you agree to hold your case and put on all your evidence and have it decided by a private arbitrator that is hired by the parties. That’s not what we’re talking about here. Those, an arbitration is typically binding, whereas a mediation through the EEOC is completely voluntary. Which means that you sit down, each side tries to iron out the dispute if they’re able to reach an agreement that they can both agree to, then great. The charge can be disposed of in that matter. If they cannot agree to it, well then you’re free to just get up and walk away. If there’s no deal, then the mediation is at an end and the charge goes back to the investigations unit and the EEOC continues their investigation. So in that sense, it’s a very low risk procedure because if the employer is not able to meet your demands and you can’t reach an agreement with them, well then you just get up and walk away literally and the case goes back to the investigations unit. All right. So what happens in an EEOC mediation? So if both sides agree to a mediation, typically what’s going to happen then is the case is gonna be removed from investigations, meaning the investigator will stop doing their work. Okay? And it’s gonna go to mediation. Then the mediation unit, which is also known as the ADR unit or Alternative Dispute Resolution unit at the EEOC will contact both sides and work on scheduling a date for the mediation. Pre-COVID, mediations were typically handled in person where both sides would send representatives or come themselves to the EEOC offices to meet there. Of course, during the COVID pandemic we’re doing everything electronically. So typically these mediations are handled via Zoom. But other than physically present, or by Zoom, the process generally works the same. And it’s like this. To start out the mediation, all of the sides meet together in what’s called a General Session in which the mediator will introduce himself or herself and explain the process a little bit and give both sides a chance to briefly explain the dispute from their point of view. All right? So after that takes place then both parties are separated and kept separate for the most part for the rest of the mediation. So for the bulk of the process, you’re not going to be in the same room with the opposing side, with your employer. And then, from then on the mediator will go back and forth, back and forth between the employee’s room and the employer’s room doing shuttle diplomacy, if you were. So they’ll come into the employee’s room and say, “Okay, well what’s the nature of the dispute and what is it that the employer could do to resolve this?” That might be a payment of some amount of money. If you believe you were wrongfully terminated. That might be agreeing not to give you a bad reference. If a prospective employer contacts you. A mediation is a creature of agreement. So there is a lot of freedom to agree to whatever terms are important to you. And sometimes you can actually get things through a mediation that you can’t get in a courtroom. Under the Employment Laws, only certain types of remedies are available if you actually go to trial. Whereas if you reach a settlement agreement in a mediation, pretty much all bets are off. If the parties will agree to it, you can do it. So there is, that is a certain advantage to sitting down together and seeing if you can work things out through mediation. So once they talk, once the mediator speaks with you then the mediator continues shuttle diplomacy back and forth, goes to the employer, brings back their offer to you. So on and so forth throughout the day. These mediations typically last at least a half a day and they can last up to a full day. If the parties then reach an agreement, then that agreement will be documented in a settlement agreement. Sometimes the EEOC will prepare, they will definitely prepare a document. Sometimes the parties themselves will then have a longer form document. Once those documents are signed, then the funds will be provided to the employee, if that was part of the settlement agreement and the EEOC charge will be dismissed. Again if the parties aren’t able to reach an agreement, well that’s okay too. Then the charge just goes back to the investigation unit and the investigator will continue his or her investigator. Do you need to bring an attorney to the mediation? Technically no. You are not required to bring an attorney to the mediation. So you can go and certainly represent yourself. And many people do that. Is it advisable to do so? If you can afford to bring an attorney, or if an attorney will agree to represent you on a contingent fee basis, it is probably advantageous for you to take an attorney to the EEOC mediation. The employer, more often than not will bring an attorney with them to the EEOC mediation. And if they don’t bring an attorney, well they certainly will have consulted with an attorney before coming to sit down in the mediation. So just to protect yourself and make sure you’re not taken advantage of in that process, it is advisable to bring an employment attorney with you if you can do so, but you’re not required to do so.