Keep your BMW keys in your pocket, and other mediation tips for employers

January 2014

(January 2014)

by Sophie E. Zdatny

Elizabeth Marcus, the Equal Employment Opportunity Commission (EEOC) mediator for New England, recently attended a regional meeting of  the Employers Counsel Network to share her insights and debunk some common mediation myths. The focus of her presentation was EEOC mediations, but many of the lessons are equally applicable to the mediation of other employment disputes, including prelitigation mediation.

Is mediation appropriate?
Once an employment claim has been filed in state or federal court, you will likely be required to mediate the case at some point. For claims before the EEOC, the Civil Rights Unit of the Attorney General’s Office, or Vermont’s Human Rights Commission (HRC), however, the parties have a choice about whether to engage in mediation. Employers with a disgruntled current or former employee may also want to consider presuit mediation as a way to obtain closure and resolve claims without the expense of litigation.

Mediation facilitates a conversation about what happened and focuses on solving a problem rather than addressing who is right. Engaging in mediation may help you avoid a time-consuming and distracting investigation by a government agency and provide you with some useful insight into your workplace.

Marcus recommends that when deciding whether to mediate a claim, employers should consider a few questions: Is the employment relationship over? Are there monetary or nonmonetary settlement options available? Do the options seem reasonable to you? Will they seem reasonable to the employee? If so, then mediation may make sense.

Together or separate? Mediation makes the most sense when you’re dealing with a current employee and the claim arises from an ongoing problem affecting the workplace. It can also be a good place to explore how to end an employment relationship as well as address issues involving recently terminated employees.

Mediation is least likely to be successful in claims involving job applicants because neither side is invested in the other and the spurned applicant typically wants the job or a monetary equivalent. One exception occurs when the applicant has made a plausible claim that a discriminatory comment was made during the interview process. Mediation may make sense as a way to explore what happened and determine whether additional training is required for your hiring personnel.

Nonmonetary settlement options. Does mediation make sense if you don’t believe you’ve done anything wrong and you’re unwilling to pay anything to settle the matter? Maybe — if you’re willing to consider some nonmonetary settlement options. Examples include:

  • Providing training on a particular issue (e.g., sexual harassment or religious discrimination);
  • Allowing the employee to attend a conference or make a presentation at the next team meeting;
  • Removing a warning letter from a personnel file;
  • Offering career coaching or mentoring;
  • Making schedule changes or other workplace accommodations;
  • Converting a termination to a resignation;
  • Not contesting a claim for unemployment benefits;
  • Giving a neutral fact-based reference; and
  • Paying COBRA premiums.

Debunking mediation myths
Marcus identified some mediation myths, discussed the reality, and suggested some solutions:

  • Myth #1: Maybe the employee will share something that changes how you see your case. The reality is, 99 percent of the time, nothing shared by the employee changes your view; rather, it solidifies your preexisting view. Marcus recommends that you not agree to mediation on this basis alone. Instead, agree to mediate based on the facts as you understand them.
  • Myth #2: The mediator can call an employee who isn’t represented by counsel and quickly find out what he wants, saving everyone time and money. Phone exchanges are time-consuming for the mediator, who may be handling many cases simultaneously and must refresh herself on the file each time. Marcus recommends that you determine whether the mediation makes sense based on the information known and save your time and effort for the live mediation. She also recommends against having your attorney call an unrepresented employee without first checking with the mediator.
  • Myth #3: You should keep meddling spouses and others out of the mediation. There is value in having the decision maker in the room, even if it’s a spouse. The EEOC allows anyone to attend a mediation. Marcus recommends that if you have questions or concerns about the attendees, discuss them with the mediator beforehand.
  • Myth #4: Once the employee hears your opening statement, she will realize the weakness of her legal claim. Usually, the employee hears “fighting words” and becomes defensive or shuts down. Marcus recommends that you gauge the employee’s body language and demeanor when you give your opening statement and adjust accordingly. The focus of the mediation is on problem solving, not winning the case, and a “soft opening” may be more successful in obtaining a resolution.
  • Myth #5: You have an agreement in principle, so the details can follow. A delayed follow-up can unravel a settlement, particularly when you’re dealing with an unrepresented employee. Marcus recommends coming to the mediation with a template agreement and release and encourages employers to be prepared to move forward promptly in processing the settlement.

Best practices
Here are some tips on achieving a successful resolution:

  • Premediation statements are not required before the EEOC, but you may want to consider submitting a premediation statement if a claim involves (1) a novel point of law, (2) a very complicated fact pattern, or (3) a graphic or egregious set of facts that would be better to get down on paper first.
  • Include someone in the company with knowledge about the situation, settlement authority, and a positive or respectful relationship with the employee. Neither an immediate supervisor who has a poor relationship with the employee nor an owner of the company who is upset about the charge is likely to be helpful in getting the matter resolved. If in doubt, check with the mediator. In court-ordered mediations, check with counsel about who should attend (individually named defendants are usually required to attend).
  • Bring a hard copy of a proposed settlement agreement and release to the mediation, with blank spaces for agreed-on terms. Don’t rely on technology. Neither the EEOC nor the Vermont Attorney General’s Office has wireless access to the Internet in their offices (or coffee or other amenities you may otherwise take for granted).
  • Let the mediator know in advance if a settlement will be contingent on approval from a public entity or the board of a nonprofit organization. Include the contingency language in any proposed settlement agreement you bring to the mediation.
  • Make sure someone is available from payroll/HR by telephone to assist with finalizing the details of any settlement, such as identifying paperwork that must be signed and any applicable time lines.
  • Be mindful of perceived symbols of wealth. Don’t leave your BMW keys on the table or chatter about your summer home on Cape Cod. That type of thoughtlessness may anger an employee who is struggling to make car payments or pay the rent.
  • Be patient and courteous when the employee makes his opening statement. If you think you or the other attendees will have difficulty listening to a long or potentially emotional presentation, focus on taking notes, and don’t interrupt.
  • Be creative in considering ways to resolve the dispute, but be practical, too. For example, an agreement that there will be no swearing in the workplace may lead to further conflict over what constitutes a swear word.
  • Keep the ball rolling if the employee makes a crazy demand. Don’t ask the mediator to get a better number, but make a counteroffer, allowing the mediator to troubleshoot with the employee.

Final words of wisdom
In the end, just keep a few things in mind:

  • It’s best to resolve matters before they escalate.
  • Being courteous and open-minded will go a long way.
  • Preparation is important.
  • Independently identify options for resolution — don’t simply respond to demands from the employee.
  • Be mindful of verbal and nonverbal messages. (Those car keys again!)
  • Consider each mediation an opportunity to learn.

vt-sophie_zdatnySophie Zdatny, an attorney with Dinse, Knapp & McAndrew in Burlington, Vermont, assists employers and institutions of higher education in managing and litigating employment and other disputes. She can be reached at