Author: Kathryn Schear

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.

Many professional workplace mediators have said that for every 50 employees there’s one who is a simmering pot. A simmering-pot is a person whose resentment is at a low boil. Simmering-pot employees have turned off, left the organization prematurely, sabotaged their companies or gone out on extended stress leaves. Some of these pots, if left unattended, will become the people who file charges with the Equal Employment Opportunity Commission, alleging discrimination. The best goal for your organization is to stay out of the EEOC process, and mediation can help you do that. But if a charge has been filed and you’re before the EEOC, consider these tips on how to prepare for success in a mediation. In part two of this article, I’ll suggest some tips for the EEOC mediation itself, as well as some ideas for steering clear of problems in the future.

Tip One: Don’t ignore the simmering pot.
    A recent workplace dispute demonstrates this point. It’s a classic example of a simmering pot who was handled “properly,” but the handling did not address the employee’s underlying concerns. The result was that the employee filed an EEOC charge anyway.

    In this situation, Max, a man in his late 40s, had been working for a private company for five years. The employer treated Max well, and even provided a flexible work schedule to allow him to take care of his sick grandmother. The event that led Max to file the EEOC charge occurred in a meeting he had with his female supervisor. Max alleged his supervisor intimidated him, and he felt scared. The human resources manager addressed the problem “properly,” by investigating the harassment charges against the supervisor, moving Max to a separate office away from the supervisor and assigning him to a different supervisor. But after the incident was handled, Max showed all the signs of someone about to file an EEOC charge: He went out on stress leave, filed a workers’ compensation claim and did not show up for work. The employer responded with all the appropriate notifications to Max, and documented all of the incidents, but never offered to meet with Max and his supervisor together to encourage them to discuss the incident. Eventually, Max filed an EEOC charge.

    When I heard that this simmering pot had landed on the EEOC’s doorstep, I was not surprised. Although the employer had made all the proper legal decisions, Max had not been given the opportunity to vent except in the form of a written complaint. I believe he needed to feel heard by people who mattered at his organization, and mediation is one of the best forums for doing this. Of course, there are no guarantees that mediation would have resolved the issues Max had with his supervisor.

Tip Two: Honestly ask yourself whether you really have a workplace dispute ‘covered.’
    In the case of Max, the employer did not have the situation “covered,” despite a belief to the contrary. I believe the employer failed to recognize the importance of the emotional component of Max’s situation as it went about trying to resolve the dispute. The employer’s focus was clearly too narrow, and the window of opportunity to resolve the situation without EEOC involvement closed. Had the employer initially addressed this problem more broadly, it might have gone away, or at least the employer could have explored negotiating a separation package with Max, which might have benefited everyone involved.

    But once the EEOC charge was filed in Max’s case, the amount of time, energy and resources that had to be devoted to defensive negative actions was far greater than if the heat had been turned down on the simmering pot sooner. Even though the EEOC did offer the employer the option to mediate the charge, the actual time frame to resolve the situation was five times longer than if it had been addressed several months before. And as in most of cases involving employees who still work for the organization, Max sabotaged his employer by engaging other employees in the drama. Some of them had unresolved issues with the organization.

    Often when I talk to managers in HR, equal employment opportunity or employee relations, they tell me they have their employee problems “covered.” They frequently ask me, “How can a mediator provide services that are different from the ones we are offering the employee?” It’s hard for me, as a professional mediator with a degree in conflict resolution and more than 500 EEOC mediations to my credit, to answer this and not sound as if I’m selling my services.

    But the fact is, most savvy employees don’t trust HR, equal employment opportunity or employee relations managers. They’re seen as representatives of the employer. Additionally, most HR and equal employment opportunity managers are used to coaching employees separately, rather than meeting with both the employee and the manager, CEO or other company representative whom the employee sees as the problem. One of the reasons mediation is so successful at resolving workplace disputes is because the parties are in the same room guided by an experienced, neutral third party. When both parties are present, the issues that led to the conflict are much easier to spot. A seasoned mediator will make the parties feel safe enough to reveal the underlying issues. Without getting to those deeper issues, the conflict will likely return.

Tip Three: Consider hiring a neutral third-party mediator to work through the issues.
    Given the factors I’ve outlined here, one of the safest and most productive ways to resolve a matter like this is to work with an outside contracted mediator. The benefit of a contracted mediation option is that an individual outside the company may be more trusted. A professional mediator’s specialty is working with parties face to face to help them understand ways to better work together. The mediator’s only agenda is helping both parties resolve the issues.

    The employer who finds himself at the EEOC is likely to feel frustrated about having to spend the time and resources either to mediate the charge or to go through the EEOC’s investigative process. The employer is also probably asking himself, “Did we miss some of the early warning signs of trouble from this individual?” Most workplace disputes that result in the filing of an EEOC charge don’t spring out of thin air. They’ve been building for a while.

    Although this may sound like I’m blaming the employer, this is not my intention. I am not saying anything about the discrimination charge that has been filed, but many of these alleged cases of discrimination involve deeper issues, such as communication problems or an employee’s feeling of being disrespected. These may be totally unrelated to any form of discrimination. If these underlying issues are not addressed, the workplace problems that will surface may affect the entire organization in a destructive manner. So it’s crucial to try to spot the trouble sooner rather than later, and not to assume it will go away by dealing with it at only the surface level.

    Most people aren’t comfortable handling conflict. As one HR director said to me, “We like to think we can handle it ourselves and are reluctant to ask for outside help.” That’s dangerous thinking. Everyone needs help and advice in resolving workplace disputes, and the smartest people know that asking for help can actually be a sign of effective management. Remember that conflict is inevitable in the workplace, and it can actually be positive if it’s addressed before too much damage has occurred.

    Finally, consider the time and expense involved in the EEOC process. According to the Federal Daily, the EEOC’s case backlog has swelled while its workforce has shrunk. In its 2007 enforcement and litigation scorecard, the EEOC noted that it had received 82,792 private-sector charge filings—its highest volume since 2002. It makes sense to steer clear of that overloaded, understaffed system if you can.

Tip Four: Understand that EEOC mediators want the employer to bring a substantive offer to the table.
    Many EEOC mediators are pressured to resolve a certain number of cases, and that usually means the mediator will try to have the employer offer the employee some monetary compensation to persuade the employee to withdraw the charge. Many mediators at the EEOC will figure out whether you are bringing some consideration to the table prior to convincing you to attend mediation. If you decline to bring consideration, the mediator may guide you toward the investigative process. That is unfortunate, since employers should not be required to bring a checkbook to the EEOC, but in many cities, this indirect screening process is the unwritten law of the land.

Tip Five: Consider whether to bring counsel to the mediation.
    Let’s move forward and assume you have opted to participate in the EEOC’s mediation process, if that has been offered to you. If you haven’t already spoken to your organization’s attorney, I would suggest calling counsel as soon as possible. Attorneys often want to be present with their clients, and since many employers are intimidated by the EEOC process, they frequently lean toward believing they “need” attorneys there to survive the process. If you believe you may have trouble containing yourself, an attorney may serve as an excellent buffer.

    There are several advantages to having counsel present for the mediation. An attorney will help you understand your legal rights, evaluate any liability you may have, make sure you don’t give away the store and generally make you feel more secure and comfortable.

    However, there are also several disadvantages: First, once you elect to bring counsel, the employee will be more likely to also want to have an attorney there. Additionally, with counsel present, the employee may feel more guarded, and that can make the process more formal. Once an employee brings counsel, someone needs to pay the attorney, and you’ll be the funding source.

    Some of the most productive mediations I’ve been involved in were the least formal, without any counsel present. In those cases, the parties struggled with the discomfort. That forced them to communicate with each other, which led the parties to address some of the core issues of the conflict. Some attorneys, in their efforts to represent your interests, may discourage you from speaking to the employee directly. They may prefer to have the mediator shuttle between the parties, rather than staying in an ongoing dialogue with the employee. I cannot stress enough the importance of this kind of dialogue for reaching a meaningful resolution of the issues, especially with an employee who is still working for you.

    Unfortunately, the typical EEOC mediation arena does not encourage this kind of open dialogue. Most EEOC mediators are encouraged to conduct a legal settlement process, in order to accommodate the attorneys. Attorneys frequently believe a controlled process protects your interests, and in certain circumstances that can be true. But in other cases, that control makes for a more stilted process and escalates the tension. That translates into higher costs for you.

    No matter what you decide about the presence of your attorney, it is definitely to your benefit to have at least one or two key people from the company attend so that the employee thinks his charge is important enough for a company leader to have taken a day away from work to listen to him.

    The second part of this article will offer tips on how to succeed during the EEOC mediation.

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