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Private Mediation in California

California has been in the forefront of alternative dispute resolution. Private mediation is one such example. Mediation is an informal process in which a neutral third party, for a fee, assists the opposing parties to reach a voluntary, negotiated settlement of their disputes. The decision to mediate is completely voluntary. It is not binding unless the parties agree to make it binding. Both the employer and employee must agree to engage in the mediation process.

A skilled mediator will allow both sides the opportunity to present their case and will clear up misunderstandings between the parties. The goal is to settle the matterÑnot crush the opponent. At the conclusion of the process it is hoped that the parties enter into a binding settlement agreement. Unlike the court system, however, a mediator does not resolve the case or impose a ruling on the parties. Instead, the mediator helps the parties to facilitate a mutually acceptable resolution. The mediation process is strictly confidential.

EEOC Mediation under Federal Law

The United States government provides mediation service for both employees and employers in employment disputes. Once a EEOC claim has been presented, the primary options for the employee are to either file a lawsuit, mediate the matter through the EEOC, or mediate the matter through private mediation services. Most California courts (those in Los Angeles County, for example) have processes in place to order parties to private mediation as well. Here are some common questions and answers about the federal mediation process, courtesy of the EEOC.

Do I need to have my attorney present during mediation?

While it is not necessary to have an attorney in order to participate in EEOC's mediation program, either party may choose to do so. The prudent course is to have an experienced lawyer with you to be your legal voice at the mediation. From the employerÕs perspective, it is important to make sure that employerÕs representative attending the mediation has the financial authority to resolve the dispute. If mediation is unsuccessful, the complaint is investigated like any other charge.

Advantages of EEOC Mediation

The EEOC mediation is conducted free of charge. Most private mediators charge by the hour. The process is fair, and both parties have an equal say on the terms of the mediation. Mediation saves time and money when compared to formal litigation. Mediation is strictly confidential, with both sides signing a confidentiality agreement. Information disclosed during mediation is not revealed to anyone, including other EEOC investigative or legal staff.

EEOC Mediation Facts

Only mediators who are experienced and trained in mediation and employment law are assigned to mediate EEOC charges. The EEOC will retain private mediators under certain circumstances. Either way, mediators by training are unbiased professionals with no stake in the matter other than wanting to resolve it.

When will the EEOC mediation take place?

Mediation usually occurs early in the litigation process and prior to an investigation of the employeeÕs charge. Offering mediation to the parties early on saves time and money, especially if it results in early disposition of the matter. In addition, mediation prior to an investigation prevents the hardening of positions that can occur during a lengthy and heated litigation. Also, the EEOC now makes mediation available even if a finding of discrimination has been issued by the commission.

Is the EEOC mediation process confidential?

The EEOC maintains strict confidentiality in its mediation program. The mediator and the parties must sign agreements that they will keep everything that is revealed during the mediation confidential. The mediation sessions are not tape-recorded or transcribed. Notes taken during the mediation by the mediator are destroyed. Furthermore, in order to ensure confidentiality, the mediation program is insulated from the EEOC's investigative and litigation functions. EEOC mediators only mediate disputes. These mediators are precluded from performing any other functions related to the investigation or litigation of charges.

Who should attend a EEOC mediation?

The employee, also known as the charging party, and a representative of the employer should attend the mediation session. The person representing the employer should be familiar with the facts of the employeeÕs complaint and have the authority to settle the charge on behalf of the employer. The parties may each bring an attorney, but it is not necessary to have an attorney or other representative in order to participate in EEOC's mediation program. The mediator will decide what role the attorney or representative will play during the mediation. The mediator may ask attorneys to provide advice and counsel but not speak for a party. If a party plans to bring an attorney or other representative to the mediation session, he or she can discuss this with the mediator prior to the mediation session.

How long does the EEOC mediation process take?

Mediation is usually a very efficient process. According to a study conducted by the EEOC, mediations usually last for approximately 3-4 hours. However, this may vary depending on the facts of each case. Successful mediations avoid a time-consuming investigation and achieve a prompt resolution of the charge.

Are all employment allegations eligible for EEOC mediation?

No. The EEOC evaluates each allegation to determine whether it is appropriate for mediation, considering such factors as the nature of the case, the relationship of the parties, the size and complexity of the case, and the relief sought by the charging party. Charges that the EEOC has determined to be without merit are not eligible for mediation.

What happens if the charge is not resolved in the EEOC mediation?

If a charge is not resolved during the mediation process, it is returned to an investigative unit and is processed like any other charge.

Is a mediation resolution legally binding?

Yes. An agreement reached during mediation is enforceable in court just like any other settlement agreement. If either party believes that the other party has failed to comply with a mediated settlement agreement, he or she should contact the ADR Coordinator.

Are most cases at the EEOC resolved in mediation?

The mediation program has reported a 70 percent settlement rate.

Do EEOC mediations ever settle for nonmonetary benefits?

The EEOC reports that in almost half of the cases that are mediated the settlement involves a nonmonetary benefit. Since the program's inception, in approximately 13.5 percent of cases the only benefit involved in settlement was nonmonetary.

You can learn more about the EEOC mediation process by calling their toll free number, 800-669-4000.