by Michael Cork, Esq.
Shortly after the claim is received, counsel and the employer’s representative should engage in a brutally-frank discussion of the charge of discrimination and a response to it. In the grand scheme of things, how important is this charge of discrimination? Is it routine litigation, or does it somehow threaten the company’s “crown jewels” because of the parties involved and the nature of the charges? What message does the employer want to send? Is it, “We defend at all costs," or "We are pragmatists and we recognize the value of resolving a case by paying something—even if we do not believe we have done anything wrong—in order to save money in the ‘long-run.’” Either way, the employer and its counsel need to define “winning.” And understand that the definition is likely to change after several months of legal bills.
The system is designed to avoid trials. As part of its duty to "conciliate," the EEOC routinely offers mediation at the time it notifies the employer that a charge of discrimination has been filed. If the employer decides to mediate, the EEOC will assume that the employer is willing to pay something to the aggrieved employee. If both parties agree to mediation, then the EEOC will schedule a mediation, normally before a mediator employed by the EEOC. The EEOC mediator is not the same person who will investigate the case if mediation fails. So the mediation will not affect the investigation.
Consider some general factors that mitigate in favor of mediating:
In brief, mediating at the EEOC is an early, inexpensive, and effective way to either resolve the claim, or learn more about its strengths and weaknesses.
This article is intended for informational purposes only and should not be treated or interpreted as legal advice. For specific advice, contact the attorney of your choice.