E. Patrick McDermott, Ph.D., LL.M, J.D.
Anita Jose, Ph.D.
Ruth Obar, Ph.D.1
We investigated the reasons for the lack of employer participation in the Equal Employment Opportunity Commission (EEOC) mediation program. Using a survey, we captured the feedback of employers as to why they declined to mediate a particular case before the EEOC, the context of their decision, their familiarity with the EEOC mediation program, and their general impressions about the Agency and its mediation program.
We found three important reasons why employers decline to mediate a particular case. The main and overwhelming factor in an employer’s decision to decline the offer of mediation was that the "merits of the case did not warrant mediation." The second major factor is that the employers did not believe that the EEOC was likely to issue a "reasonable cause" finding. The third factor is the perception that the EEOC mediation program requires monetary settlement. We emphasize that the key factor that causes employers to decline mediation is that they do not believe that the charge is meritorious.
We also examined the context of the decision to decline mediation. We found that the employers who declined the offer of mediation are well informed regarding the EEOC processes and the EEOC mediation program. Almost half have prior experience mediating in the program. The vast majority of the employers conducted their own internal investigation of the charges prior to declining to participate in the mediation program.
Most of the survey respondents were familiar with the EEOC mediation program prior to deciding to decline to participate in the program. Of those who were unfamiliar with the program, most had investigated the EEOC mediation program prior to declining mediation.
In almost all cases, the survey respondents stated that the EEOC could not have done anything differently to entice them to mediate. It is the employer’s perceived quality of the charge that dictates whether the employer goes to mediation, not the perceived quality of the mediation program.
The survey respondents' perceptions about the EEOC were rather neutral. Their perceptions of the mediation program, though slightly more positive than their perceptions about the Agency, were neutral as well.
We conclude that there is little that can be done with the mediation program, as presently structured, to increase the participation rate. Should the EEOC wish to increase its mediation participation rate it can do so by changing the employer's perception of the merits of the charge at issue. More careful screening may result in a higher percentage of charges with potential merit.
Another way to change the employer perception of the merits of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. Our research indicates that many employers are willing to mediate the charge later if necessary.
A marketing program may increase the attractiveness of the mediation program if it can convince employers that there is value in mediating a charge. Here, the perception that money must be paid to settle the charge at mediation must be addressed.
This page was last modified on December 10, 2003.
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