Meeting of December 2, 2003, Washington, D.C.
EEOC Mediation Program and the Workplace Benefits of Mediation
Welcome by Chair Dominguez
Notation votes by Bernadette Wilson
Opening remarks by Chair Dominguez
Remarks by Commissioner Miller
Remarks by Commissioner Silverman
Remarks by Commissioner Ishimaru
Question and Answer Session
Presentation by Ms. Donna Gwin
Presentation by Ms. Laurice Royal
Presentation by Ms. Yvonne Workman
Presentation by Mr. Robert Carr
Presentation by Mr. Charles Warner
Presentation by Mr. Joseph Mallon
Question and Answer Session
Presentation by Ms. Ann Reesman
Presentation by Ms. Yvonne Gloria-Johnson
Presentation by Mr. Maurice Wexler
Presentation by Mr. F. Peter Phillips
Question and Answer Session
We will now come to order. Good morning. On behalf of my fellow Commissioners, it's a great personal privilege for me to welcome all of you to this very important meeting, a meeting on mediation. I am glad to see that there is so much interest in this topic.
We have a number of special guests this morning that include our colleagues from the Federal Mediation and Conciliation Service. We are honored to have with us the Chief of Staff, Chad Turner, and Alternative Dispute Resolution Submission Coordinator, Rich Jacaloni. Where are they? Welcome, welcome. Additionally, Mr. Jacaloni brought with him a class of 25 FMCS mediators who are observing in closed circuit television in the viewing room. We're delighted to have all of you here.
A warm greeting to all of this morning's panel members who have taken time from their very busy schedules to join us. Each panelist will be introduced in turn. We are very appreciative of your joining us this morning.
I also need to take a moment up front to express the Commission's appreciation for our first panelist of the day, Paula Choate, who serves as Director of our Headquarters Based Field Coordination Programs Division in the Office of Field Programs. Her hard work and devotion as well as that of her team to our mediation program no doubt has been a key contributor to the mediation's successful results.
One of the things is the timely scheduling of a two-day conference that is taking place here in Washington for all of EEOC's alternative dispute resolution coordinators who are here exchanging experiences and ideas. It's a golden opportunity not only to do that but also to be part of this forum.
So I want to recognize our ADR Coordinators from the district offices across the nation as well as from our Washington Field Office who are here. Welcome. Thank you for being here. I also want to thank them for their hard work. They are the ones that are in the trenches day in and day out. It's really important that we hear them and recognize their hard work.
I also want to take an opportunity to introduce our newest Commissioner, Stuart Ishimaru. Commissioner Ishimaru was just sworn in two weeks ago so this is his very first meeting. We're delighted to now have a full compliment of Commissioners, the first time in seven years. Not only do we have a full compliment of Commissioners, we have a General Counsel.
So this is almost unheard of to have the whole team in place. I'm just delighted that the time has arrived to have all the resources and the expertise that the Commission needs to continue to carry on with its important work in the presence of our fellow Commissioners and General Counsel. At this point, I am going to ask Bernadette Wilson to announce any notation votes that have taken place since our last Commissioner meeting.
Ms. Wilson.
MS. WILSON: Good morning, Madam Chair, Madam Vice Chair, Commissioners, and welcome to EEOC Commissioner Ishimaru. I am Bernadette Wilson from the Executive Secretariat. During the period September 5, 2003, through November 30, 2003, the Commission acted on 31 items by notation vote. Madam Chair, I move that the list of items approved by notation vote since the last meeting be entered into the record as if read in its entirety.
CHAIR DOMINGUEZ: Is there a second?
PARTICIPANT: Second.
MS. WILSON: Madam Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting.
CHAIR DOMINGUEZ: We need to vote first.
MS. WILSON: Okay, I'm sorry.
CHAIR DOMINGUEZ: Is there any discussion?
I hear no discussion.
All those in favor say aye.
(Chorus of ayes.)
CHAIR DOMINGUEZ: Opposed?
(No response.)
CHAIR DOMINGUEZ: The ayes have it and the motion is carried.
MS. WILSON: Now Madam Chair it's appropriate at this time to have a motion to close a portion of the next Commission meeting.
CHAIR DOMINGUEZ: Do I have a motion?
PARTICIPANT: So moved.
CHAIR DOMINGUEZ: Second?
PARTICIPANT: Second.
CHAIR DOMINGUEZ: All in favor?
(Chorus of ayes.)
CHAIR DOMINGUEZ: Opposed?
(No response.)
CHAIR DOMINGUEZ: The ayes have it and the motion is carried. Thank you, Ms. Wilson. As the Commission continues to receive over 80,000 charges annually of employment discrimination, our mission continues to be affected by a continuously changing work environment. In order to best meet the needs of the EEOC stakeholders, in August of 2001, I implemented a Five Point Plan placing priority on coordination, innovation, and results.
The centerpiece of the plan is the goal of expanding and promoting mediation as a form of alternative dispute resolution. For more than a decade now, EEOC has experimented with mediation as a means of resolving workplace disputes to the satisfaction of all involved parties. In fact, Commissioner Miller was a co-chair of the national task force charged with developing the Commission's National Mediation Program. We know that he will have some thoughts and perspectives to share with us this morning on that.
Over the years, EEOC has observed time and again that mediation offers advantages over traditional enforcement and litigation activities and strategies in efficiency, relationships, and outcomes. Mediation is a great partner to litigation. As such, it is the linking pin for the current Commission's remaining four imperatives which are Proactive Prevention, Proficient Resolution, Strategic Enforcement and Litigation, and EEOC as a model workplace.
The EEOC's mediation program is one of the largest employment-related mediation programs of its kind in the country conducting more than 11,500 mediations each year and it continues to grow. In FY 2003, nearly 8,000 charges filed against private sector and state and local government employees were successfully resolved through mediation. We also made great headway in encouraging federal government agencies to use ADR more often. And here at the Commission, we launched our own internal resolve program for EEOC employees which is already yielding encouraging results.
Commissioner Leslie Silverman has made the National Mediation Program one of her top priorities spearheading the Commission's efforts to learn as much as possible about the potential benefits of mediation, about the factors influencing decisions to participate in mediation, best practices, and emerging mediation strategies. This meeting is a direct result of her hard work, her focus, and her energy to make this program the best that it can possibly be. And I want to publicly thank her and acknowledge her very hard work on behalf of the Commission and her leadership on this front.
COMMISSIONER SILVERMAN:
Thank you.
CHAIR DOMINGUEZ: On that note, I am going to be proceeding a little differently than I normally would. Following opening remarks, I am going to turn the agenda over to Commissioner Silverman for her to lead the rest of the proceedings. Madam Vice Chair.
Thank you. Good morning everyone. First of all, I want to thank you, Madam Chair, for scheduling this meeting. Second, I want to thank you, our guests, for being here with a special thanks to our ADR coordinators who have flown in from around the country. Last but not least, I want to thank Commissioner Silverman for her leadership on this matter. I am so impressed with here leadership that I have relinquished my chair for her today and trust that I will not need a mediator to get it back from her.
(Laughter.)
VICE CHAIR EARP:
I hope today's discussion will be beneficial to our stakeholders as well as to our staff. George Herbert, a Seventeenth Century English poet, once said that "A lean compromise is better than a fat lawsuit." And it occurs to me that if that was true in Seventeenth Century England when life was relatively simple then how much more is compromise important today and how much better is compromise today in our speeded up, Internet, email, non-face-to-face world?
I have been a devotee of ADR and mediation for some years. And as I'm sure you will hear this morning, mediation allows the parties to quickly and less expensively resolve disputes. But that efficiency is not my main reason for being a supporter of mediation. I am primarily supportive of this tool because it allows the parties to not only be empowered but to actually sit face-to-face and begin the process of working through a problem.
In other words, it facilitates communication which is something very essential in an environment as complex as ours. I want to thank you all again for being here. And I look forward to what our panelists have as recommendations on how we can move into the future. Thank you.
CHAIR DOMINGUEZ: Thank you very much, Madam Vice Chair. Commissioner Miller.
Thank you, Madam Chair, Vice Chair Earp, Commissioners Silverman and Ishimaru, invited guests, ladies and gentlemen. I especially want to welcome our EEOC ADR coordinators who I had the privilege of spending a little bit of time last night with in a spirited conversation about our program, learning all sorts of things about the ADR program from the ground.
I am really pleased to join my colleagues, first of all, and all EEOC employees in welcoming Commissioner Ishimaru to the Commission and to this, his first Commission meeting. I look forward to working with him as I have with my fellow Commissioners to address the many issues that are facing EEOC during the coming months. I know that all of those who benefit from the efforts of the EEOC will glean from his insights and commitment
to the full participation of the American dream.I also too want to thank Commissioner Silverman for all of her hard work, not just in getting us to this very important meeting this morning but for the way that she has embraced both the message and the issue of Alternative Dispute Resolution since arriving here at the Commission. I know that all of us on the Commission embrace principles of mediation and ADR, but the way that Commissioner Silverman has really made it a part of her agenda on the Commission has been a great benefit not just to the EEOC and to the issue of ADR but to all of our stakeholders on all sides.
This morning we take up a topic that has long been central to my vision for a fair and efficient EEOC, that being Alternative Dispute Resolution. And as some of you know, I was honored to have been asked by then Chair Gil Casellas (PH) to lead a task force on Alternative Dispute Resolution with former Vice Chair and Commissioner Ricky Silverman. And although Ricky is not here in the room today, much of what we embrace and talk about and celebrate as the EEOC's ADR program is in great debt to the work that Commissioner Silverman did both on the task force and prior to that task force.
I remain convinced that the product of our collaboration is among the singular exemplars of the bi-partisan spirit that the drafters of Title VII had hoped would animate the EEOC's approach to its heavy responsibility. The broad array of panelists that we have assembled for this morning's meeting are a testament to the continuing viability of the goals that we sought in recommending the EEOC's mediation program. That is a just, neutral, fair, and efficient alternative to the administrative process that can too often antagonize rather than reconcile without losing sight of the EEOC's primary mission as the chief enforcer of the nation's civil rights laws.
I look forward to hearing about our successes as well as suggestions for improvement that may be offered by our guests this morning. It has been said that success has many parents and failures languish as an orphan. And among the many parents who can take pride in the success of our mediation program are the dedicated EEOC staff who transform the vision of that task force report into a functioning program achieving real results for charging parties and respondents alike.
And despite the bromide that would characterize headquarters personnel as officious intermeddlers in the work of the field, sometimes their diligence and perseverance are precisely the right prescription. And Madam Chair, if I may, I'd like to read a quote from a letter that I received just a few days ago from Tony Weaver who recently retired as the ADR coordinator in our Philadelphia District Office. And it captures some of my sentiments.
The success of the ADR program is a direct reflection of the care, skill, and thoughtfulness that went into the development of the original program design. The bi-partisan support given to the concept of establishing an interface, facilitative program at the EEOC was crucial. Lest anyone forget, then Speaker of the House Newt Gingrich testified on behalf of the EEOC and its mediation efforts in an open appropriation hearing.
Our ability to gain our appropriation bump that year was in large part due to Speaker Gingrich for mediation. While this bi-partisan spirit was indeed crucial to the program, the nitty-gritty work of designing and activating the day-to-day operation of this new program was even more important.
And that job fell to Steve Ichniowski who was responsible for writing the guidelines and the desk book, creating all of the mediation documents to be used, to finding the details of the work to be performed by the EEOC, field staff drafting and creating job descriptions, and attending to a myriad of other administrative details necessary for getting this program off the ground. He succeeded in his efforts. And he did so on time consistent with our budgetary mandates.
Once the program was operating in all districts, Steve was and is still an authoritative source and in-house consultant to ADR coordinators. His accessibility and no nonsense answers to policy questions and quick responses for operational assistance earned him the respect of the Commission's ADR community.
While these accomplishments are indeed impressive, what isn't generally known are the personal sacrifices that Steve endured in providing services necessary and overseeing the development launch and operation of the program. Steve is a selfless public servant and the heart and soul of the mediation program as it began.
To quote Professor McDermott, who we will hear from later today, "You may spell his last name with three I's but that letter is not part of his vocabulary as he is an ultimate team player in the Commission's mediation effort." I want to publicly thank Steve and include Mr. Weaver's letter as part of the permanent record of this meeting both as a reflection of the work that Steve did and also as emblematic of the work of all of the EEOC staff, the ground staff, that really made this program happen.
Oftentimes the Tenth Floor gets a lot of credit for that which happens in other places around the building. I think it's appropriate that today, as we celebrate this program, we celebrate the staff that put it together. I look forward to hearing today's presentations and to working with my fellow Commissioners and EEOC staff in strengthening this vital adjunct to the Commission's mission of eliminating workplace discrimination. Thank you.
CHAIR DOMINGUEZ: Thank you, Commissioner Miller. And thank you for sharing that wonderful testimonial. I appreciate it. Commissioner Silverman.
Thank you again, Chair Dominguez, for holding this hearing today and for your kind statements. And I would like to welcome our ADR coordinators. I have not had the opportunity to meet all of you, although I have met a good portion, and I look forward to meeting with you later today. Thanks for coming.
I would also like to echo my colleagues in welcoming Commissioner Ishimaru to his first Commission meeting. It's truly fantastic to have a full Commission on board. And I say that with the utmost sincerity and not just because I'm no longer the most junior Commissioner as Commissioner Miller has constantly reminded me of over the past year or so.
(Laughter.)
COMMISSIONER SILVERMAN: Actually I would be remiss in my remarks today if I did not begin by recognizing Commissioner Miller's crucial contributions to our mediation program. As you have heard, Commissioner Miller co-chaired the task force on Alternative Dispute Resolution that created and implemented EEOC's National Mediation Program.
That task force spent countless hours over the course of nearly a year examining Alternative Dispute Resolution to determine whether it would be appropriate for the Commission to use ADR to assist with its mission. As you know, they ultimately settled on mediation and they developed the core principles and structure that still guide our program today.
Now, when the task force began its work, as many of you may recall, many of our stakeholders thought it was a really bad idea. They said that it would take away from the responsibilities of the enforcement agency or that the EEOC could not play a neutral role. But I believe I speak for everyone in this room in applauding Commissioner Miller's task force and all of the Commission staff, and in particular our coordinators who are here today, for their hard work. It certainly paid off.
Our mediation program is one of the most dramatic changes that the EEOC has ever implemented. It signals our agency's recognition that the parties to a dispute are often better able to resolve their difference than the government or the courts. Since its inception in the mid-1990s, the EEOC's mediation program has flourished.
One of the main reasons that our program has continued to flourish is the fact that our chair, Cari Dominguez, has made mediation a priority since day one of her administration. The mediation program is one of the focal points in the Chair's Five Point Plan for leading the agency. Under her strong leadership, much effort has gone towards improving the quality and growing the program. We will hear about some of those efforts today.
Now, since Commissioner Miller helped create the National Mediation Program and Chair Dominguez has made it a priority, you may be asking yourselves what am I doing taking such an active role in today's meeting. No, I am not letting my recent bump in seniority go to my head. I am here because I have been a huge fan of the mediation program since its inception. And I arrived at the agency eager to work on the program. And I am so thankful to the chair for giving me this opportunity to share my enthusiasm with you.
While mediation is not appropriate for every charge, I believe the mediation program is a big part of our future here at the Commission. My previous experience has taught me that in most instances the longer an employment dispute drags on the more detrimental it can be for both parties.
Many of our charging parties believe that like L.A. Law in the 1990s and more recently in Ally McBeal that they will have their day in court where they will finally be heard and that their discrimination claims will be resolved expeditiously. But the fact is, even with the most able assistance of the EEOC or the finest private attorneys, employment disputes can take years to resolve and only a small percentage actually get that day in court.
Our mediation program aims to get the parties together face-to-face quickly and have them work together to try to resolve their problems. Even when mediation fails, most parties who participate believe that they have gained something from the process. Mediation clarifies and narrows the issues for the parties. It forces them to focus on their concerns. And it often provides a necessary dose of reality helping them to see the strengths as well as the weaknesses of their cases.
Mediation also improves communication and enhances workplace relationships. And it fosters creative problem-solving approaches to workplace disputes. And the EEOC's mediation program has never been stronger than it is today. This past fiscal year we continued to see record numbers. As the Chair mentioned, we resolved nearly 8,000 charges last year. And we achieved nearly a 70 percent resolution success rate.
Our average charge processing time is only about 85 days as compared to 160 days for traditional processing. And we are pleased to note that 84 percent of charging parties agreed to participate in mediation. Unfortunately, however, the employer acceptance rate is much lower. Only about 31 percent of employers invited to mediation accept. As they say, it takes two to tango.
And that is indeed a significant reason as to why we are all here this morning. For a mediation program to continue to grow and prosper, we must bring more employers to the table. Now, we know the program works, but sometimes our word is not enough. And that is why I am delighted to have employers of different sizes representing different industries here today who will explain why they have embraced our mediation program.
It's the Commission's hope that today's meeting will help educate and inform the public about our program and the benefits of mediation in the workplace. We also hope to explore ways to improve, enhance, and expand our program. Today's program will begin with a snapshot of our mediation program, an overview of where we are today.
We will then hear from Professor McDermott who has just completed his third study of our program. This one focused on why employers so often choose not to participate. Now as I mentioned earlier, we will also hear about the workplace benefits of mediation from employers who actually use our program. We hope from this to garner a better understanding as to what motivates those who do participate so we can more effectively market our program to those who don't.
And we will also look to mediation experts both inside and outside our agency for recommendations on where to take our program in the future. We are so fortunate to have such a broad array of experts with us. And we know that many of you have traveled today to be with us at your own expense. We want you to know that we really appreciate your doing so, and we look forward to hearing from each of you today. Thank you.
CHAIR DOMINGUEZ: Thank you very much, Commissioner Silverman. And now, we will hear from our junior Commissioner, Commissioner Ishimaru.
I thank the Chair, my colleagues, and the staff for the warm and generous welcome that I have received over the last two weeks at the EEOC. It's really been great. It's an honor and privilege to be here and to serve as a member of the EEOC. Employment discrimination and dealing with this vexing problem was the heart of the 1964 Civil Rights Act. And it's hard to believe that nearly 40 years later we are still dealing with it in record numbers. But, indeed, it's still here, and it's a problem.
I'm pleased that the first hearing that I am participating in is on our mediation program at EEOC. During one of my past lives at the Department of Justice in the Civil Rights Division, we were big proponents of ADR. All of us were trained. We used it as an integral part of our enforcement program. And we saw results just as we have here. Mediation is an excellent and vital part of any enforcement program. And I'm pleased that we have embraced it as a fundamental part of ours.
We have many challenges and issues on our plate. I know I've been briefed over the past two weeks on a lot of these. And I am pleased as a member of the minority and as the junior member of this panel of the collegiality that I found here at EEOC. It's something that in this town you don't always see. And working on these hard issues sometimes it's also not available.
But here it is. I think it's a tribute to the leadership of the Chair and to the work of my colleagues that it exists like this. It always hasn't been the case. And I think the Chair and my colleagues have done a great job in creating a marvelous forum to talk about these hard issues that we face. I trust that in the coming months and the coming years that a fair process, that open and frank dialogue, that transparency, and that a careful consideration of these issues will be hallmarks of our work as we march ahead in battling the vexing battle of employment discrimination.
And finally, I would like to thank Commissioner Silverman who has put in tremendous work in pulling this hearing together. I know for a fact she was here over the weekend as my two boys were banging on the walls and disturbing her. And as a former staff member, I would like to thank the staff who put this together; Amy Habib and Susan Murphy who I know have put in countless hours and countless long nights in pulling together a hard hearing. I am looking forward to the testimony this morning. It looks like an excellent way to start off. I thank the Chair, and I thank my colleagues.
CHAIR DOMINGUEZ: Thank you very much, Commissioner Ishimaru. A couple of administrative matters before we proceed. This little timer here pretty much serves as a guide for the panel members. The yellow light signifies that two minutes remain for your testimony.
So if you have an opportunity, please keep an eye on the timer so that we have a chance to give everyone the opportunity to share their experiences and recommendations. And also this is being videotaped so if we could get you to speak into the microphone, it would help our system tremendously. And without further ado, Commissioner Silverman, please proceed.
COMMISSIONER SILVERMAN: Thank you very much, Chair Dominguez. Before we get started, I wanted to remind everyone that because of our time constraints this morning, some panelists will not have time to share their full statements with us. However, following this meeting, the full and complete statements of all participants will be up on our website. In addition, our website's mediation page will be updated with new material including a sample universal mediation agreement.
Now, it is with great pleasure that I am able to begin today's meeting with the introduction of our Panel 1 participants. Paula Choate, who usually goes by Polly, is the Director of Field Coordination Programs in the agency's Office of Field Programs. In 1990, Polly joined the agency as Director of Field Management West. And since 1997, Polly has had programmatic responsibility for our private sector mediation program. She will lead the first panel by giving us an overview of our mediation program.
Second, Professor Pat McDermott is an attorney and Assistant Professor of Legal Studies in Management at Salisbury University. If Professor McDermott did not have such an impressive and varied career, from the review of his bio, one would think that he was a professional student as he holds a BS, an MS, an RM, and a Ph.D. In addition to his academic endeavors, Professor McDermott has represented both employees and management before our agency.
Today we are looking forward to his discussion of the results of his third study of our mediation program. "An investigation of the reasons for the lack of employer participation in the EEOC mediation program" is the title. The study should be up on our website today. And a question and answer period will follow this panel. Polly.
Thank you. Good morning Chair Dominguez, Vice Chair Earp, Commissioners Miller, Silverman, and Ishimaru, distinguished guests, members of the audience, and our field ADR coordinators. My name is Polly Choate. I am the Director of Field Coordination Programs in the Office of Field Programs. We are responsible for development and coordination of EEOC's private sector mediation program which is implemented through our 23 districts and the Washington Field Office.
I am pleased to provide a brief overview and history of EEOC's mediation program. Our ADR program was piloted in our field offices in 1991. Based on the recommendations of its ADR task force, the Commission concluded that mediation was a viable alternative to traditional investigatory methods. In 1995, EEOC adopted its policy statement on ADR reflecting the program's core principles that any ADR program should be voluntary, neutral, and confidential.
The mediation program was fully implemented in April 1999. Our program has a firewall which separates its mediation and enforcement functions. No information disclosed in mediation is shared with staff conducting investigations or litigation. The centerpiece of Chair Dominguez's Five Point Plan, our mediation program has endured overwhelming success in resolving charges of employment discrimination.
Over 52,400 mitigations have been held. And more than 69 percent or 35,100 charges have been successfully resolved in an average of only 85 days compared to a current average of 160 days in investigations. Over $485,000,000 in monetary benefits have been secured through mediation. But monetary benefits do not tell the whole story. While traditional remedies may be explored, many mediations involve creative solutions which are developed which meet the parties own needs and interests.
Looking at the year since the program began reveals that in 14 to 20 percent of cases a non- monetary benefit is the only benefit that changes hands. Examples of non-monetary benefits include a shift change, a job transfer, out placement assistance, or training for managers or supervisors.
But the benefits of mediation often go beyond the merits or resolution of a particular charge. Through mediation relationships can be preserved, workplace communications can be enhanced. In mediation's confidential setting, the employer may learn new information which will help improve the workplace.
Each of our district offices has an ADR unit. Currently we have 21 ADR coordinators and 81 staff mediators with one to seven mediators per office. EEOC also has a contract mediation program funded at $1.8 million in 2003. Each district has from three to over 30 contract mediators. Offices may also use volunteer mediators.
EEOC offers mediation soon after the charge has been filed, but the parties may request mediation at any stage of the charge process. In 2002, we expanded the kinds of charges which are eligible for mediation. In 2003, mediations were conducted in over 1,200 charges which had been identified as having a likelihood of merit and 850 charges or 71 percent were resolved.
We also used mediation in 40 charges at the conciliation stage after a reasonable cause finding. More than half of these charges were resolved. A group of charges that failed mediation were with the same employer, however. If these charges are not counted in the mix, then the success rate would have been 74 percent.
We have encouraged employers to enter into universal agreements to mediate. UAMs take the place of individual agreements to mediate each charge and expedites the process by providing identified points of contact for scheduling the mediation. We now have over 400 UAMs at the local level and 23 UAMs at the national and regional level. National agreements include such employers as Albertsons, Kimbal Glass, Trim Masters, and Cargo Freight, and several Fortune 500 companies.
We also piloted a referral back program. With the charging parties consent, we hold further processing of charge in abeyance and refer the charge back to an employer's own internal ADR program for possible resolution. The pilot currently includes four Fortune 500 companies and one major city government employer.
We have always looked to our customers and our stakeholders for -- program. Several studies have been conducted by independent researchers to evaluate the ADR program's effectiveness and identify potential improvements. The first study, conducted by our guest speaker and his colleagues, was based on confidential surveys and mediation participants including employers, charging parties, and their representatives.
The report found that 96 percent of employers and 91 percent of charging parties would use mediation again if offered, and it did not matter if the parties were represented or not, what type of charge had been filed, or if a resolution was reached or not. The results were the same. The parties felt the mediation program was informed, fair, and neutral. And their overall satisfaction with the mediation process remained consistently very high.
A later study conducted by Southwest Texas University reached similar results. As noted by the Chair and by others on the Commission panel, despite these survey results, very few employers who were offered mediation agreed to come to the mediation table, only about 31 percent. To evaluate this aspect of the program, we asked Professor McDermott's team to survey employers about the reasons they say no and to ask what EEOC could do differently to increase their participation.
We are very pleased to have their most recent report, and we look forward to using the survey results and report recommendations to enhance our program and increase participation. I would like to introduce Professor Patrick McDermott. I think Commissioner Silverman has said it all when she made her opening remarks about his qualifications. And with no further ado, Professor McDermott.
Madam Chair, Madam Vice Chair, Commissioners Silverman, Miller, and Ishimaru, fellow panelists, hardworking EEOC employees who are watching by closed circuit hopefully, and honored guests, our research team, including myself, Dr. Anita Jose - Dr. Jose if you could stand up - and Dr. Ruth Obar, Senior Research Fellow at the Center for Conflict Resolution at Salisbury University, were charged with investigating a relatively straight forward issue. Why do employers decline the EEOC's offer to participate in the EEOC mediation program?
Our data represents a cross section of EEOC offices and types of charges. In our comprehensive report, we discuss our research design, methodology, and profiles of the employer/employee representatives and charges. Time does not permit a detailed discussion of these areas today.
What did we find? First, we found three important reasons why employers declined to mediate a particular case. And that's important, 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." This was our key finding and essentially answers our research charge.
Employers are not interested in mediating charges that they perceive do not have merit. Here I would introduce a basic concept from one of my favorite courses, negotiations theory. A fundamental requirement for negotiations - and we recognize that mediation is essentially facilitated negotiation - is that there exists some interdependent goals and objectives that require the parties to negotiate. We have found that employers do not believe - and again that's the employer's perception - they do not believe that they have any obligation to negotiate is they do not believe that the particular charge has merit.
The second major factor is that the employers did not believe that the EEOC was likely to issue a reasonable cause finding. This leads to the first reason but also relates to perceptions as to what the EEOC is going to do with the actual charge. This fits into a second key concept in why people negotiate. In addition to interdependence, conflict resolution literature notes that negotiation is necessary where there is no clear or established procedure for making the decision. Here the employers have determined that they prefer another method for making the decision in the charge, the EEOC investigation.
The third major factor is the employer's perception that the EEOC mediation program requires monetary settlement and their unwillingness or stated unwillingness to offer any money for the particular charge at issue. This factor while compared to the first two was cited by half of the employers.
In the vast majority of the cases, the EEOC could not have done anything differently for employers to mediate the charge. We asked this specific question. And the employers responded no, there's nothing that the EEOC could or couldn't do to affect our decision not to mediate. This confirms a finding that it was a perception of the quality of the particular EEOC charge that drove the employer's decision.
Without doubt, this is the answer to the question of why employers declined to mediate. In order to contextualize these employer's responses, we examined the decision-making process of the employer and whether the decision was an informed one. To us, as important as an employer's decision not to mediate was the foundation of that decision.
We concluded that once we had the contextual information it would be much easier to interpret the employer responses to the key question of why did they declined to mediate. What did we find? We found that in the majority of cases the decision not to participate in the mediation program was collective and internal to the organization.
In making this decision, a large number of the decision-makers for the company had prior experience with the EEOC and its processes. So they were familiar, comfortable, and they understood the EEOC processes. Forty-four percent of the survey respondents had experienced an EEOC decision where there was reasonable cause to believe that the employer had violated the law.
So a portion of these employers had actually had an adverse finding from the EEOC. And again, most, and I say most was in the area of about 85 percent, had regularly appeared before the EEOC with regard to various charges. Eighty percent had not been involved in any type of EEOC federal district court litigation. So most had not seen federal court litigation with EEOC. Most decision-makers were familiar with the EEOC mediation program. In fact, 54 percent of them had participated in the program before.
We also examined the efforts of the employers to investigate the EEOC charge. And again, this is part of the foundation. What did the employers know at the time that they made the decision not to mediate this particular charge? We found the vast majority of the employers had conducted their own internal investigation of the charges prior to declining to participate in the mediation program.
They used a wide variety of methods. These actions included document review, consultations with other management and non-management employees and witnesses, conversations with charging parties' supervisors, contact with company attorneys, and sometimes contact with the charging party themselves depending on whether the charging party was still employed with the organization.
We concluded that employers who declined mediation were well informed about the EEOC and its processes, the EEOC mediation program, and the merits of the charge at issue. Thus the employers were informed decision-makers. And we do not believe they acted based on a notion, false perceptions about the EEOC program, but rather made an informed decision about a particular charge.
And it should be noted that they also indicated with regard to the timing of the charge that they were not adverse to mediation. It was just at this particular point. Many indicated that they would enter mediation later when they learned more about the case. In other words, their perceptions about the charge may have been incorrect. The investigation may have been faulty. So they indicated they were not adverse to mediation overall, but for this particular point in the process, they were not interested in moving forward.
What could be done? As presently designed, at the moment in time when mediation is offered, the employers have investigated the charge internally and are not ready to negotiate based on their perception of the case. In general, this lack of interest in mediating is not related to the EEOC or its mediation program. In fact, it's quite the contrary.
Thus there is little that the present pre- investigation program as structured can do to increase the participation rate. Should the EEOC wish to increase its mediation participation rate, they can do so by changing the employer's perception of the merits of the charge at issue. I think that's the key thing here, the employer's perception of that particular charge that's being suggested for mediation.
First, we found that employers believe that some of the charges offered for mediation should never have been selected for mediation as they were completely without merit. And we're not saying this is correct or not. We're just reporting the employer's perception. If this is the case, then more careful screening should result in a richer quality of charges and thus a higher acceptance rate if again what is driving the employers is their perception of the merits of the charge.
A second way to change the employer perception of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. If mediation was offered at a later point, after EEOC investigation indicates that the charge may have merit but before a final investigative determination, it is expected mediation would be more attractive to the employers.
Again, the idea here is that the investigation may shift the perception of the employer with regard to reasons for mediating. This is supported by our research results indicating that many employers are willing to mediate the charge later if necessary.
In sum, the failure of more employers to enter EEOC mediation in its current design as a pre- investigative program is primarily structural. The employers do not believe they have incentive to mediate at the pre-investigative stage because at this time in the process they don't believe the charge has merit. Some also believe that they have to pay money at mediation.
These employers also do not have any concern that the EEOC investigation that will occur in lieu of resolution at mediation will be adverse to their interests. In fact, I would argue that they welcome the investigation. If the EEOC desires greater employer participation in the mediation program, the EEOC must address this structural issue.
A final point is that our prior studies indicated that employers appreciated the EEOC mediation program. The program was well received and it was a success. And we actually will be returning and sampling some of these same persons who had participated in the prior research. So we know overall that the program is well received. It's respected by the employer community. And yet we also know that some of these same persons who so applauded the program in our earlier research have elected for particular charges that it's not in their best interest to move forward with mediation.
It is possible that the EEOC could build on this reservoir of good will with the community to further market its program, market the fact that employers are satisfied if they do enter into the program, and use this information to further encourage employers to mediate. But our caveat here is that we believe that based on our research employers think they are making a rational decision that is essentially wholly unrelated to the overall quality and wonderful success of your program but rather is related to their perceptions in the charge.
A quick note of thanks. Madam Chair, we would like to thank you and the entire Commission for your interest in mediation and our research. We would also like to thank our EEOC contacts on this study; Polly Choate sitting to my left, Ellie Miller and Roy Reese for their technical assistance and support. They were great colleagues to work with. We also would like to thank John Nicholson for his assistance to Dr. Ruth Obar in integrating critical EEOC data from its charge database with our research database. If you have any questions, I would be happy to answer them.
COMMISSIONER SILVERMAN: Chair Dominguez, do you have any questions?
CHAIR DOMINGUEZ: Just a profuse thanks to Professor McDermott for that very comprehensive research. We look forward to really scrutinizing it carefully and to identifying other opportunities to build on this program. So I want to take this opportunity to thank you and certainly to Polly and her whole team for continuing to advance and promote our mediation program.
COMMISSIONER SILVERMAN: Vice Chair.
VICE CHAIR EARP: Thank you. Professor McDermott, is there a relationship between the employer's perception if the employee is presumably a good employee and still on the payroll, still with the company in some way, versus an employee who may be perceived as not competent or for other reasons not remaining on the payroll?
Because in our effort to market mediation, I guess my question is does it make a difference. In your study, did you find that employers distinguished, or was this notion that the charge was consistent whether they wanted to preserve the relationship with the employee or if the employee had been discharged? And if it's different, how much of a difference did you detect?
DR. MCDERMOTT: The last part of your question is the toughest and it's a great question. As to the exact amount of difference we detected, Dr. Obar could run the numbers on that. She is our statistical wizard. What we definitely detected - and in fact we had a few discussions about it - was the fact that if the employee was still on the payroll there was a much greater likelihood that the employer was willing to mediate the charge.
And what I think this gets back to, Vice Chair, is when there is a continued employee relationship there is essentially that interdependence we talked about with the negotiation theory. Essentially they are walking down the road together, and they have to figure a way to share that road and reach a successful conclusion. So yes, there is a difference. In fact, all of our research points to the fact that in a continuing employment relationship where emotions haven't hardened to the same degree as when there is a severance, the potential for a successful mediation is greater.
VICE CHAIR EARP: Was timing still an issue? If you want to preserve the relationship, was the employer more likely to want to mediate early or did they still raise the question about after the investigation to get more information?
DR. MCDERMOTT: The way I would answer that is that the overwhelming factor in whether the employer decided to mediate or not was their perception of the charge. That being said, they were more likely to mediate - and that would be immediately - if the employee was still employed with the organization.
And then we don't know to what extent persons who indicated that they may be willing to mediate later actually mediated these particular charges because we had a picture in time so to speak. But it's possible that some of the charges we investigated may actually be mediated in yet another year if these cases are litigated in federal court. We just don't know.
VICE CHAIR EARP: Thank you.
COMMISSIONER SILVERMAN: Commissioner Miller.
COMMISSIONER MILLER: Thank you and thank you to both of you. I want to start with Ms. Choate. I'm really interested as sort of the programmatic head of the ADR program around the country if you can share with the Commission what is it at this point in the history of the program that ADR coordinators need out there in the field to better implement our enthusiasm for growing and expanding the ADR program. What do people in the field say to you that they need or that they would like to see the Commission support them with?
MS. CHOATE: There's one word, resources. That would capture it in one word.
COMMISSIONER MILLER: And how would you prioritize resources in terms of the program?
MS. CHOATE: Well, there are several offices that don't have clerical support. And everyone recognizes of course that we have a budget crunch and we have been in a hiring freeze so everyone is sharing that burden. When the program began, as you may know, with all the funds that came with that bump in our appropriation, there were program assistants in every office that had a mediation unit.
Now, there are several offices that don't have that, and so that makes it more difficult. Those duties now have to be performed often by the mediators themselves or the ADR coordinators. I know that the district offices attempt to share the clerical support that is in the office with the mediation units, but in many offices there's even a lack of clerical support for the whole enforcement function.
So that would be, I think, one of the main things that they would suggest. Also, I think more contract money would be helpful and also more mediator staff. Again, everyone understands that there is a hiring freeze and why that is and why that's necessary at this point.
COMMISSIONER MILLER: But given the priorities, would you say that the ADR coordinators feel that getting support staff is the number one or the first among many priorities as oppo
sed to contract dollars or money for other mediators?MS. CHOATE: I think the ones that don't have those would say that's the priority for them.
COMMISSIONER MILLER: Great. Thank you. That's very useful to know. Professor McDermott, you and I go back a couple of years. I just want to thank you for all of your really excellent work and insights into our mediation program. As you know, when we started down this path at the agency - and it has been mentioned earlier - mediation at the EEOC was not a gimme. It wasn't an obvious choice.
In fact, everybody hated the idea. And some of you in the back over there are smiling because we engaged in some of those conversations. And now, it's very heartwarming to see that people have embraced the program. And I think it's in large part because of your independent, credible analysis of what we were doing and how we were growing the program. And holding an independent mirror up to our program has made this program work much better.
And I think it's a testament as we begin to look at other programs the role of independent, credible analysis and auditing of these programs really help programs develop more credibly and better and are very useful insights. I want to go to the most recent report and explore one or two things with you and I guess go back and get your insights into whether you feel we have maxed out in a sense in the EEOC's tinkering with ADR processes and structures as a way of growing and expanding the program based upon your input and insights from the folks you have spoken to.
DR. MCDERMOTT: That's a good question. I worked and my research team worked really hard at identifying areas where we thought the program could improve to increase employer participation. We found evidence - whether one would classify it as diminimous (PH) or not I'm not sure - but we found evidence from some parts of the country where one travels a long way to mediation that maybe the mediation program could have been a little more flexible in the way the mediation was set up.
We found some evidence in certain situations that maybe employers were offered mediation in such a way that they really didn't have enough time to think about it and accept or reject the mediation. But overall, I think that was an exception to the rule. And I think you could increase participation somewhat by focusing on these what I would call minor tweaking for lack of a better phrase but that overall the program is well received and respected.
And the testament to the respect of the program is some of the fine individuals who will be testifying here today. And the fact is the employer decision is now driven more to the charge itself and all the decisions that are made as to whether one wants to mediate or not when they believe a charge doesn't have merit. So, if I was pushed to reach a conclusion and my research team and I discussed this, I would say that it's not maxed out, but it's a very highly efficient program right now.
COMMISSIONER MILLER: How would you judge variables let's say as those who have never had a charge filed before them so this is the first charge or people who have had a tremendous amount of experience with the EEOC in dealing with charges or even issues such as legal fees they need to pay for their own counsel as variables or factors in assessing whether to mediate a claim?
DR. MCDERMOTT: We measured all of that. The way we looked at it was both through the experience of the employers before the EEOC but also the decision-maker. And the decision-maker was defined as the individual who filled out the survey who is the person who made contact with the ADR coordinator. And we found out that about 85 percent of these decision-makers had experience with the EEOC program.
And of course, when you then overlay that with the employer, the organization, they usually had experience with the EEOC. If you had a novice employer, usually that decision-maker had maybe worked in HR in another company before then and had experience with EEOC maybe as outside counsel. So really we had relatively well informed decision- makers.
And I think you probably would have to go to maybe five percent or less where you had both the employer and the decision-maker who knew nothing about the EEOC. EEOC has been around for a while. And the fact is that most employers and their representatives have some idea. The second part of your question I have forgotten.
COMMISSIONER MILLER: Legal fees.
DR. MCDERMOTT: Yes, legal fees. We looked at that. As an attorney, believe it or not that's always my cynical view is that attorneys' fees drive a lot of the litigation game. And I always want to try to find that in my research. But I always find it very difficult to politely ask attorneys to hold onto a case long after you should mediate it just so you can make more money out of the case.
(Laughter.)
COMMISSIONER MILLER: Are you afraid of shaming an attorney?
(Laughter.)
DR. MCDERMOTT: Well, actually what we try to do is extract that information from them without them knowing it. But I think they are too smart. But we didn't ask a question like that. We asked a question which was a bit different was did your client's ability to pay in any way influence your decision about whether or not to go to mediation.
And It was a back door measure. We really were trying to figure out if they had more money you would take the case longer. We all know the person who taught us to practice law early in our lives who when somebody called and said I would like you to represent me, our mentor would say how much money do you have. Then they would say well about $100,000. Fine, that's about exactly how much it's going to cost for me to represent you in this case.
(Laughter.)
DR. MCDERMOTT: But we couldn't find --
COMMISSIONER MILLER: That's in the DNO policy, right?
DR. MCDERMOTT: That's right. But we did not find that. We actually did not find that. I have to really look at our results and go by the numbers. I really think that employers are actually making more sophisticated decisions and that their counsel actually are making decisions that are more sophisticated than just attorneys' fees. That being said, I'm convinced that there is a percentage out there that may think that way. But again, our data shows that's not the driving percentage.
COMMISSIONER MILLER: Great. Again, thank you to both of you for your really useful and thoughtful insights. As you may know, I have always believed that not every charge is appropriate for mediation. But I also believe that we are not capturing every single charge that is appropriate for mediation.
And our challenge as an agency is not to get every single charge in to mediate and into our program but to really get those charges that I think really benefit from this process as distinct from administrative or conciliation or litigation processes for that matter but to get those charges into our process that really benefit from this process. And I thank you both for your work.
DR. MCDERMOTT: Well, Commissioner, I would like to thank you because you are a bulwark of mediation advocacy and consistency. As I have appeared before this agency, you are the one consistent commissioner I have seen and exchanged conversation with you over the program. And I would just like to let you know that in my research and interaction with persons in the agency, you are very highly respected and your assistant, Paul Richard, is extremely well respected. And I would like to thank you for your efforts.
COMMISSIONER MILLER: Well, thank you very much. My consistency here on the Commission is in direct correlation with my ability to get another job.
(Laughter.)
COMMISSIONER MILLER: So as soon as we work that out, you will see a less consistent Commissioner. Thank you very much, Pat.
COMMISSIONER SILVERMAN: Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Thank you, Madam Chair. I would like to go back to the question of merit. I thought that was fascinating. Were you able to tell from your research whether they were talking about whether the complainant had a legal case or whether they just had a problem? What was merit all about?
DR. MCDERMOTT: It was not always about the law. And I could ask my statistician wizard, Dr. Ruth Obar, to pull this out. But we do know the percentage of times that the decision-maker consulted with counsel. And if I had to guess - and I would be guessing - I would say that was probably in about the 30 percent range. So those internal investigations were not in conjunction with legal counsel but rather based on their layperson's understanding of Title VII law. And I would also probably say based on the anecdotal comments that sometimes it's the employer's emotion affecting their perceptions of the merits of the charge.
COMMISSIONER ISHIMARU: But is the driver here for the decision-maker, is it whether we have legal liability or is it that there is an employment problem that needs to be addressed? The person comes to you. They have a serious complaint that they have raised to this level. Is the decision-maker thinking will I be held liable under some legal theory or can I try to resolve the problem that's in front of me?
DR. MCDERMOTT: I think their reaction in most of the situations was we didn't do anything wrong. What's being alleged here just isn't right. That's not the reason we made this employment decision.
What we found that was interesting is that when an attorney enters the scene from the employee or plaintiff's side, that that ups what I would call the legal ante. At that point in time, employers regularly then seek legal advice to reinforce their initial determination that they had done nothing wrong. So we found that that was interesting. As the legal ante got upped, employers then took the next step to make sure that they were in fact on the right side of the law.
COMMISSIONER ISHIMARU: And who are the decision-makers making the call whether to take mediation at an early stage? Is it the human resource people or is it the legal people?
DR. MCDERMOTT: We found a mix but primarily internal staff persons with some assistance from external counsel. The most interesting thing we found was that it really wasn't the owner of the business in most situations or someone else not in that staff role. So it was usually a relatively informed staff decision-maker who sometimes consulted with external counsel. Some employers did use external counsel and not staff personnel.
COMMISSIONER ISHIMARU: Thank you. Ms. Choate, I have a basic nuts and bolts question. I think in the last couple of weeks I have been drinking out of too many fire hoses, and I think I have mixed up apples and oranges. Who is actually in the mediation itself when you do this? There's the mediator. There's the --
MS. CHOATE: Okay, there's the mediator who could be one of our internal staff mediators or a contractor or pro bono mediator. Then there's the employer representative and the charging party. And sometimes the charging party will have counsel or can bring someone with them, some other representative or family member. And sometimes the employer will bring counsel or bring another type of representative.
COMMISSIONER ISHIMARU: But is there a general feel as to how many times people bring other parties to the table, counsel or an outside representative? Do you have any feel for that?
MS. CHOATE: Well, I think Yvonne Gloria- Johnson, who is on the panel later who actually has field experience, could give you a better answer from her perspective personally, but I would say it's about even.
COMMISSIONER ISHIMARU: Great. Thank you very much. Thank you, Madam Chair.
COMMISSIONER SILVERMAN: Thank you. I am just going to ask one quick question although I have a million for you guys, but I know both of your phone numbers. Professor McDermott, if we were to routinely offer mediation at the later stages, post- investigation, would there still be an incentive for employers to engage in mediation early on because it's somewhat of an economic issue for us? We want to capture more people but we don't want to lose what we have now. Have you thought about that at all?
DR. MCDERMOTT: No, I haven't thought about it in any detail. I would just say off the cuff that if the goal is to get the parties to solve their own problems - and I think there is a lot of great insight offered as to why that's important - sometimesthat may just be something that happens later as opposed to earlier.
So if you don't offer it initially, would that chill your initial offer of mediation? I'm not sure that it necessarily would. But that's one thing you may have to think about. If employers knew that mediation was offered later, would that chill the opportunity to resolve the charge early? I probably would think not, maybe for a few, but for most there's a lot of reasons you want to resolve a charge early that have to do with other factors than the program itself.
The other things is that most savvy counsel know that essentially they can negotiate the case later with the EEOC anyway, the investigator anyway. They can almost obtain a de facto mediation depending on the particular practices of an office. So there's always that opportunity anyway if you think about it. That's what conciliation theoretically is all about.
COMMISSIONER SILVERMAN: Thank you. If there are no more questions, I would like to thank our Panel 1 very much. The first grouping of Panel 2 can take your seats. Panel 2 will focus on why parties choose to mediate and the workplace benefits of mediation. Panel 2 is broken up into two parts in part because our table is only yea big.
The first group will provide employer's perspective. I would like to welcome Donna Gwin who is the Director of Human Resources for Safeway, Laurice Royal who is Senior Counsel for Labor and Personnel at Johns Hopkins Health Systems Corporation, Linda Workman who is Vice President of Workforce Effectiveness at ConAgra Foods which is one of the largest employers to have ever signed a universal agreement to mediate with us, and Robert Carr who is Vice President of Human Resources for Society of Human Resource Management who is going to share the perspective of some of the smaller to mid-size employers. A question and answer period will follow this where we will have all the panelists come back up. Let's start with Donna please.
Good morning. Thanks for inviting me here this morning to talk about mediation. It was interesting to hear from Professor McDermott about some of the things that he found because the perceptions were mine at times. I have been with Safeway since 2001, but prior to Safeway I worked for several employers that I did not mediate at that time.
My idea was, just as he talked about, that when I got the charge that we didn't do anything wrong, and there was no reason to mediate. It was not understanding the mediation process. So it was just that I would just say no I don't want to pay any money and so therefore never mediated a charge until I did come to Safeway in 2001.
I think how that changed for me is my company's overall attitude on mediation. When I entered the position, they had already been mediating charges with the EEOC. So when they came up, it was an automatic that we would with most charges mediate. So at that time, I started attending mediations and got to know what the process was.
I also attended a 40 hour mediation certification training. That gave me a perspective of what it was about, what the mediator's role was, and an understanding from that perspective. I have to say we are extremely pleased with the mediation program. We have mediated almost every charge that has come through and at a very early stage. We try to in the very beginning.
One of the major things that I have learned is that idea that it has no merit, we didn't do anything wrong. Safeway down in the Washington, D.C. area has 140 stores. So we were relying a lot on our store management and "the story they tell us." So at times, going to mediation, I have learned a great deal that there is some - I hate to say merit - but there are sometimes some issues that we can learn from.
I do also feel that sometimes, to your question, Vice Chair, that emotion does come into it because if it's a "problem employee" that's terminated, there's times you just don't want to ever sit across the table from them again so you really don't want to go to mediation. But we usually do. The reason why too is we're all stretched. We have to do so much more with so much less.
By not having to write the position statement and gather all of the required information, which is very time consuming, we just figure it's up front on what the issues are. Let's try and get them resolved. Frankly, it saves us having to write a position statement. We resolve many of them.
Also the professionalism of the mediation program. I mainly deal with the Baltimore District Office and the Marie Sciscione (PH) in that office. I have to say I have dealt with Marie and some contract mediators. They are always professional. They are unbiased. They get us to an agreement. So I think that has helped with the program.
We do have a universal agreement with that office. I would probably say right now pending I have total 12 charges. Like I said, we have 148 stores or close to that. I had over 15,000 employees. So we're proud of that. I think by mediating early we get them resolved. We then gain a good rapport with the employees as well because we found - especially those that are still employed - the next time around they tend to give me a call versus filing a charge because they think we are reasonable and we listened.
A lot about mediation we learned early on is it's so valuable to hear the employee, to just listen, to listen clearly, to take good notes, understand their feelings. It's a lot about feelings. Then later when they think you are reasonable, you listened, you come to an agreement in the end, then the next time around they tend to call me and say you were helpful last time and I have this concern or this issue and let's deal with it.
I think as we talked about I learned that there were some myths. Again, if we did something wrong or if we didn't do anything wrong, well we are not going to mediate. You have to remove that myth about whether we did anything wrong or not but let's listen and see what the issues are. We have to pay money. We talked about that.
That was the initial thing I thought. I didn't want to pay anything. We have resolved many charges with no money. We just had one yesterday that we resolved. A lot of it was around either training or doing an investigation and coming to resolution. But there are a lot of things. Sometimes it was a neutral reference. We have come out of things without having to pay a lot of money.
One of my concerns - and this has not happened - is the word will get out that all you have to do is file a complaint and go to mediation and the company will pay money. It's a real big concern because you don't want the floodgates to open and all these people feel this is an easy way even if it's $2,000 or $3,000 from the company. We have not found that to be true whatsoever.
Actually I feel as though all of our charges have gone down. I do think it's because our employees do look at us as being reasonable, as listening. We have learned a lot of things that we might not have been handling correctly, and we have tried to go back and be proactive and fix those things so as to avoid charges in the future. We have learned a lot of that through mediation. So we really haven't had to pay.
Some people think it's not worth the time. We talked about whether it's the travel time. Sitting in mediation sometimes for three, four, five hours, whatever the time is. To me, it is well worth the time and the effort to learn all the things that I have learned.
I think the advantages, as we have talked about, include it gets resolved quickly. We normally don't have a write a position statement. That really helps us. It does preserve the relationship especially with our internal employees. A lot of them have never gotten the chance to meet me or talk to me so it's talking across the table and really listening to them. Preserving the relationships is a big thing. As I said, learned issues that needed to be addressed or fixed and viewed as a reasonable employer that listens. Then as I said, they will call HR in the future.
I wrote a few maybe suggestions if you will about how we can get the word out there to others. One is actually publicizing mediation. I don't know how you do that, but I know with every charge comes the would you like to mediate. Some people not understanding the process, as I didn't, just put it aside.
So somehow calling the employer when they get the charge, talk him through, or if they get it back and they don't want to mediate but the employee is willing, maybe some dialogue. I have been more than willing and have done it in the past to call other employers to tell them my perceptions and how it has worked for my company.
I hear that we have someone from SHRM. I belong to local chapters of the Society of Human Resource Management. I know they are always looking for topics. One may be about mediation, Alternative Dispute Resolution, tying it into the EEOC, and maybe having employers from the area come and speak about it. So that would be a way to publicize that.
The other thing - and I don't know how this plays in - is we do have a universal agreement to mediate. I think some of the times we get involved with the other agencies, the PHRCs, and they are not real quick to want to let the charge move over to the
EEOC where we have the universal agreement to mediate.I think because of the rapport that we have gained and the importance of that - I don't know how you do it - but at times they seem to persuade the charging party where they want to move it and they say you don't want to do that. So then they decline to mediate if we're going to move to the EEOC. I don't know if you can get involved in that, if it falls under the big umbrella or not.
COMMISSIONER SILVERMAN: Thank you. Laurice.
Good morning. I would like to thank the Commission for inviting me to participate as a speaker in today's proceedings to address the benefits of mediation in the workplace from the employer's perspective. I come this morning as a member of the Office of General Counsel for the Johns Hopkins Health System Corporation which represents a group of healthcare employers that utilize or support the mediation program, some of whom have signed the universal agreement to mediate drafted by the Commission.
My clients are primarily the Johns Hopkins Health System Corporation, the Johns Hopkins Hospital, the Johns Hopkins Bayview Medical Center, Johns Hopkins Community Physicians, Johns Hopkins Home Care Group, Johns Hopkins Healthcare, and Howard County General Hospital. I tell you all of these things because all of these employers support the program.
I am a member of an informal focus group which was formed between the American Bar Association and the EEOC whose mission and activities will be discussed later in these proceedings by Commissioner Silverman and Mr. Maurice Wexler. I should probably give you a little bit of information about my background so that you can get an appreciation for how far I have personally come from the way in which I managed complaints of discrimination and where I am and where my clients are in this journey.
Prior to joining the General Counsel's Office I was in the Litigation Section of the Baltimore City Solicitor's Office for about ten years. My chief responsibility - and I say this in quotes because this comes out of my job description - was "to vigorously defend the city in all employment litigation matters and to vigorously defend meant you fight everything. There was no in between. It was you would go to court.
We litigated every case and rarely settled anything. If I tried to work anything out, it was only at the urging of the court in settlement conferences. Prior to that, rarely did I contemplate discussing resolution. That just wasn't feasible in most cases because management and most human resources offices were not interested in settling. Settlement was viewed as a defeat or an admission and not supportive of personnel decisions that were made by management.
I must also add that there really wasn't a mechanism in the agencies that I regularly dealt with to consider voluntary resolution unless we were talking about conciliation after a finding. Of course, the employer was not in a great position to negotiate at that point. When I was hired by the Office of General Counsel for the Health System in 1994, my immediate responsibility was to get a handle on the pending EEO charges and to once again vigorously defend my clients.
I had more resources available to me and was able to hire outside counsel, expert witnesses, and to utilize other supportive resources to defend my clients. I can say that in most cases we actually prevailed. In a few matters, we actually settled just before trial. Although we prevailed in many cases, litigation took its toll on our resources both financial and human.
Litigation often took on a life of its own, lasting sometimes for years. During that time, management memories waned, staff moved on, employee/employer relations soured, and attorneys fees escalated. In the end, it did not seem to be an effective way to continue doing business. There had to be a better way.
An investigator that I had known for several years and who is present here today I might add, Maria Sciscione (PH), approached me on a few occasions and expressed that perhaps there might be a way to resolve some of our charges. That may have been sometime in 1996. Although at first I was resistant, I listened.
She talked to the charging party in one of my cases. I talked to my clients. After a short period of time, we all agreed on a resolution that was acceptable to all parties. The beauty of the resolution was that it involved a current employee who was still in the workplace and who had to continue to have a relationship with management after the charge was filed.
In the course of resolving the charge, we were able to reestablish a workable relationship that would have likely continued to deteriorate and of course from our perspective create additional exposure for the organization. It was truly a win-win situation. As time passed, more and more of our cases were resolved through the informal mediation process. I believe that the Health System signed its first universal agreement to mediate in probably 1999.
We did so because we saw tangible benefits from our early participation. In our experience, we found that cases are normally resolved relatively soon after they are filed. Successful mediation of course eliminates litigation costs.
Mediation improves employer/employee relations. Mediation provides a neutral forum to discuss workplace issues. Mediation is truly voluntary. Mediation is confidential and isn't held against the parties if we are unable to settle. We trusted the integrity of the process. And mediation actually works.
I think that it is important to note that our experience in the Baltimore District Office has been exceptional and that but for the professionalism of the staff I'm not sure that we would have embraced the program so readily. I say that because I do understand that there are different experiences in different offices. But our particular experience has been really good.
Hopkins is striding to be an employer of choice. We think that participating in the EEOC's mediation program moves us that much closer to meeting that goal. Employers of choice do not sit in court with their current or former employees. We work at resolution at every stage from the time that an employee approaches his or her immediate supervisor or HR with a concern through attempting resolution through the EEOC mediation process.
This does not mean that Hopkins is a push over. You can ask anyone on the plaintiff's bar who has been across the table from us in mediation or any mediator who has handled any of our cases. When we mediate, we are tough and we are frugal. Sometimes I'm called cheap.
(Laughter.)
MS. ROYAL: But we are fair and we negotiate in good faith. If a case is not appropriate for mediation, we don't mediate. If we cannot come to a resolution at the end of one session, we rarely continue the process. Notwithstanding this, we resolve at least 75 to 85 percent of our charges annually through the mediation process.
As a result of our commitment to the mediation program and the efforts of management and human resources within each organization, we have seen a dramatic drop in pending Title 7 charges throughout the entire health system. Without giving exact numbers, out of approximately 15,000 employees employed by various employers within the Health System, there are a handful of pending charges. I would say right now it's probably under eight. Okay.
It is not without a great deal of work on my client's part that these results have been achieved. Managers are trained by each human resources office to quickly respond to allegations of discrimination. Of course, each employer has a comprehensive anti-discrimination policy which all employees are made aware of on the first day of employment during orientation.
The HR professionals responsible for implementing the policy conscientiously follow up with the investigation when a complaint is filed internally. They do a great job of resolving issues before they become an external matter. We also have an internal mediation process that employees may utilize prior to filing an appeal of any workplace issues. If the situation can't be worked out, HR fully embraces the EEOC mediation program, and I believe that sends a great message to our employees.
Finally, I would like to pass on a few lessons learned that my clients and I have learned along the way as participants in the mediation program. Number one, we learned that the parties must be prepared to mediate a case. You can't just go into mediation without having done your homework.
I always meet with management and HR to go over the facts of the case, all files, and any reports that may have been prepared. We discuss possible ways to resolve the case. We get authorization from the appropriate executives and apprise them of the situation so the process is not hampered by waiting to get authority from them in the situation that we get authority, that it's fair, and what we believe will resolve the case.
We learned that settlement is not always about money. Sometimes there are non-economic ways to settle a case that may be important to the charging party and to my clients. I think you heard Ms. Gwin tell you about some of those non-economic ways to solve those cases.
We learned to be open-minded and flexible. I can't tell you how many times I walked into mediation thinking to myself that there was no way this case was going to settle. There's too much water under the bridge. Of course, I never tell the clients because I don't want to scare them away. And most of the time, I am dead wrong because as I told you before we settle most of our cases.
We learned the importance of coming to the table in good faith. And that means coming with a meaningful, well thought out proposal. We learned the importance of respecting our employees at the table and that although we may disagree with their position and may even believe that their claim is frivolous that it is important for us to keep an open mind and to keep our thoughts on resolution.
And finally, we have learned that not every dispute can be resolved by mediation and that's okay as long as we gave it our best efforts. In conclusion, I would like to thank the Commission once again for inviting me to this forum. And I'm happy to answer any questions you might have regarding my remarks.
COMMISSIONER SILVERMAN: Thank you, Ms. Royal and Ms. Gwin. If you could just trade places with Linda Workman and Robert Carr, then we'll have all of you back up for question and answer. Ms. Workman, would you begin?
Thank you. Madam Chair, Madam Vice Chair, Commissioner Miller, Commissioner Silverman, Commissioner Ishimaru, and colleagues, on behalf of ConAgra Foods, I appreciate the opportunity to appear before the Commission today to offer our comments on the workplace benefits of mediation. I would like to begin with a brief overview of ConAgra Foods so that you can put my remarks in context.
ConAgra Foods is the home of many famous consumer food brands and is one of North America's largest packaged foods companies serving consumer grocery retailers - we hope Safeway is one of those - as well as restaurants and other food service establishments. This is an important time in the history of our company as we take steps to become what we call America's favorite food company.
Last week we finished two divestitures that complete the strategic reshaping of the company into a branded and value added packaged foods company. Through a series of strategic portfolio changes that include the sale of our fresh beef, pork, and chicken processing operations among others, we have now concentrated our capital in branded and value added foods.
Today we have more than 40 favorite brands including Act II popcorn, Armour, Banquet, Blue Bonnett, Brown and Serve, Butterball, Chef Boyardee, Cooks, Crunch and Munch, Eckridge, Egg Beaters, Fleishman's, Gulden's, Healthy Choice, Hebrew National, Hunts, Kid Cuisines, Knocksbury Farm, La Choy and many others. I'll stop there. But even as we move to reshape our company through acquisitions and divestitures and transform our marketing and operating models, it is important to note that there are several things that are very basic and core to who we are as a company.
Our future is just as importantly built on those values and beliefs. And that includes teamwork, accountability, ownership, integrity, and diversity. It's those values and beliefs that prompted us to enter into a national universal agreement to mediate with the EEOC in March of 2003 which is what we're here today to discuss.
Disagreements and misunderstandings unfortunately are a fact of life. And at times, they do extend into the workplace. We entered into the agreement with the Commission on a voluntary basis because it fits with our value of promoting equal employment opportunity. We also very practically recognize the value of early dispute resolution when it can be reasonably achieved. For us, mediation just makes good business sense.
Prior to signing our agreement, we had utilized mediation to resolve discrimination matters on a limited basis, in general only when we were invited either by the Commission or a state agency and only when there seemed to be a compelling reason to do so. Since joining the Commission's mediation program, we have had an increase in opportunities to mediate not because we've seen a rise in our charges but because we now consider mediation in every case where it is available.
This is a value to us because it facilitates a greater number of charges being resolved and resolved early in the administrative process which is of benefit to all parties including the Commission. One of the key reasons we elected to participate was to increase the awareness, involvement, and understanding of our HR managers and professionals in our field locations. We want them to know the benefits of mediation to achieve dispute resolution.
Administrative charges, whether filed with the Commission or another agency, can have the effect of creating a stressful adversarial environment. It can lead to further proceedings including litigation unless a healthy intervention takes place to resolve the matter. We believe mediation provides an opportunity for such an intervention. And when successful, it assists the parties in promptly returning to a more productive employment relationship.
At ConAgra Foods, we are able to utilize the process whenever possible and recognize its benefits. For this reason, in July of this year, we offered in-house mediation training to all of our operating group HR staff so that they could more effectively participate in the EEOC's program. At that session, more than 80 members of our HR organization participated in the two day training session. We intend to repeat that session on an annual basis.
We wish to express our appreciation for the support we receive from the Commission in developing this training. Ms. Paula Choate, Director of EEOC Field Coordination Programs, actually came to our corporate headquarters and delivered an excellent presentation to the group on the business wisdom of utilizing mediation. And that kicked off our national universal agreement to mediate.
Since entering into the agreement with EEOC, we have recognized several advantages to participating and I would like to just mention them. First, when mediation is successful for an employee who has filed a charge, it allows that employee to return to productivity more quickly. It avoids a lengthy investigation. It avoids adversarial feelings and at least mitigates them. In this way, mediation contributes to overall workforce effectiveness.
Participation in the program is also a means by which a company can communicate to its employees that it's committed to providing equal employment opportunity as well as communicating directly with the employee or applicant or other charging party about the specific issue. The mediation process can be an opportunity for an employer to explain and clarify the action it has taken as well as any other actions that may be necessary.
So it is an opportunity to practice positive employee relations. It often narrows the issues that need resolution. Even if mediation fails, that translates into a less expensive and more focused internal investigation for the employer. If successful, it saves time, energy, and other costs associated with the resolution of that issue. The company will not have to respond to an administrative charge by submitting a lengthy position statement.
In our experience, mediators have background as either EEOC investigators or attorneys well versed in employment discrimination law. This enables them to be effective in helping the parties be realistic in their settlement expectations which is a crucial step towards success. Mediation isn't all about money. It's about practical solutions.
We have many non-monetary remedies through mediation such as reinforcing company policies, providing the charging party with a letter of reference, and the list goes on. From an administrative perspective, there are very definite advantages. We have a single contact person in the company to receive all charges. It accelerates the scheduling of mediation.
We don't give up any flexibility to manage charges since we still have the right to participate a lot on a case by case basis, and the process is not burdensome. Conferences typically take a half of a day to a day to complete. And there are other advantages as well.
In conclusion, based on our experience at ConAgra Foods, the mediation program is a valuable tool. It is a sound approach for addressing the resolution of charges in the workplace. We encourage other employers to use it. We thank the Commission for making the program available. Thank you.
COMMISSIONER SILVERMAN: Thank you. Mr. Carr.
Good morning, Chair Dominguez, Vice Chair, and Commissioners. Thank you very much for this invitation to comment at the Commission's meeting on the EEOC's mediation program. I am Robert Carr, Vice President of Human Resources and Strategic Planning for the Society for Human Resource Management, or the Society.
The Society is pleased to discuss the EEOC's mediation program. SHRM members represent organizations of every size across the United States and abroad. Today I will focus on our members' experience with mediation particularly those who represent or work with small to medium sized organizations. My comments include examples of experiences from SHRM members.
You might imagine a letter from the EEOC is quite intimidating. Pretty much it's as welcomed as a letter or notice from the IRS. To our members, this program was probably as welcomed as a pack of Rolaids at a chili cook off. Both do let a little steam off the situation.
(Laughter.)
MR. CARR: As human resource professionals, our members are especially interested in EEOC's mediation program as they often stand on the front line of most if not all employment disputes that arise in the workplace. While these disputes range from simple misunderstandings to very serious allegations, all require prompt attention and an appropriate response from the human resource function to resolve them in a fair and equitable manner on the basis of the employer's policies and procedures following the state employment laws and business principles.
Although decisions reached in employment disputes are based on sound legal policies, the decisions unfortunately can be the impetus for employment law claim. Fortunately the EEOC's mediation program can provide both employers and employees an opportunity to resolve employment disputes without embarking on expensive, aggressive, and lengthy litigation.
We favor the program because the human resource profession can play an active role in the resolution of an employment dispute. A number of SHRM members have participated in EEOC sponsored mediation. In fact, as a small employer, I have also participated in the mediation process. And though our complaint was not resolved, I can tell you it was a very welcomed opportunity and a very fair and expeditious process.
We have an information center which handles more than 80,000 calls per year from our members. We regularly receive calls regarding the use of mediation to resolve workplace disputes. The calls indicate that SHRM members understand the benefits of the EEOC mediation program and in fact play active roles in the mediation process.
One of the main benefits of the program is the informal process. It doesn't require legal counsel for either employer or employee in the process. And again, employee members can play an active role in the resolution of disputes. As a result of this structure, employment disputes handled through mediation are often resolved collaboratively and at less expense, a true benefit for small employers.
Another advantage of the mediation program for our members is that it allows parties to converse openly and freely about workplace disputes in a very confidential setting. Mediation enables small businesses to manage their disputes more efficiently because the parties are able to resolve the disputes without the expense of attorneys, courts, or the legal process.
It also offers a non-adversarial setting. The use of neutral third parties to help resolve differences and facilitate settlement is a very welcome aspect of the mediation process. Because of the informality, parties through mediation can explore a variety of case conclusions that litigation often does not offer. As my colleagues have testified, neutral letters of references, access to out-placement services, continuation of employer provided healthcare are just a few examples of case conclusions that have been derived through mediation that may not have been possible through the litigation process.
While our members have found EEOC mediations to be fair and efficient and to be fair and helpful in resolving outstanding issues, there is more that can be done. For one, we think there should be greater outreach to employers. The sense of fairness and efficiency in the mediation process has been especially strong in the regions where the EEOC has taken steps to reach out and work with the HR community.
Our members have been especially complimentary of efforts of the Regional Office in Detroit and in the Regional Offices in Texas. There have been a number of efforts of outreach to our employee groups. And we think that has come a long way in helping to expand the program and to create a stronger sense of impartiality. We think in sum that the EEOC mediation process and program can be strengthened if all EEOC offices across the country were to take a structured, proactive approach, and reach out to the HR community similar to what has occurred in Texas and in Detroit.
We have a couple of suggestions for improvement. While we agree that EEOC mediation benefits all parties to the employment law claim, there are a couple of steps we think that you can take to enhance the program. One frequent concern expressed by members is whether or not the EEOC and an enforcement agency can remain impartial in the mediation process and not assume that discrimination has in fact occurred.
Another concern expressed by our members is that EEOC mediators place too strong an emphasis on monetary damages. This concern is especially paramount in situations in which an EEOC employee serves as a mediator in the case as opposed to a non- EEOC employee. SHRM fully appreciates the EEOC's strong interest in proactive prevention as well as strategic enforcement and believe that the Commission is making great strides in its objectives by partnering with employers and human resource professionals.
However, we think that more can be done. And we welcome the opportunity to work with the Commission to explore ways in which the EEOC can be an even stronger partner with human resource professionals and to publicize the availability, impartiality, and benefits of participating in the EEOC sponsored mediation programs for both employers and employees alike.
One way that we see at SHRM to strengthen the EEOC's mediation process is to make greater use of mediators outside of the EEOC. While we recognize that there are cost implications to this approach, we think this step would greatly improve the perception of impartiality of the mediation program as well as increase the utilization by both employers and employees.
We think that human resource professionals, skilled in facilitating workplace disputes, could be trained as mediators to help with the EEOC program. A neutral third party with a human resources background will certainly help bring a similar process to completion in a fair and expeditious manner. It's what we do each day. Additionally, human resource professionals are aware of the laws and regulations covering discrimination in the workplace and could further enhance the mediation process.
Another suggestion we have for improvement -- and we have agreed that this is an effective way to mediate claims -- might increase should the EEOC mediators do more than simply facilitate the resolution of a dispute. Facilitation mediation focuses on the mediator or neutral third party.
Good mediators should be able to think outside the box and bring personal insight to the process. They need to let both employers and employees know the likelihood or the unlikelihood of having a favorable outcome in the investigation. They need to be able to do more than offer an employer a monetary amount to bring closure. It is especially important for both parties to understand the likelihood of obtaining a favorable settlement in the process.
We think the EEOC should more strongly encourage mediation to both parties. SHRM believes that the EEOC mediation program would be more effective if mediation were more strongly encouraged prior to litigation. One suggestion is to expand the mediation program to cover post-probable cause conciliations and tie the conciliations with mediation techniques. SHRM believes this will increase the number of pre-litigation resolution.
On balance, we believe most aspects of the mediation program were well developed. However, SHRM members have expressed dissatisfaction with some of the program's procedural elements. SHRM suggests that rules and procedures be put in place to protect parties from tactics that may prolong the process and create unfair disadvantages to one party or the other. In conclusion, we appr