The EEOC Mediation Program: Making Peace Happen at Work

Julie Bretz, EEOC Supervisory ADR AttorneyRuby Simelton Jones, EEOC MediatorLinda Mealey-Lohmann, EEOC Contract Mediator &

Mealey-Lohmann Mediation

Making Peace Happen at Work

1. EEOC Mediation Program2. Key Theoretical Concepts3. Roleplays

Program Guidelines

Program must be consistent with EEOC’s dual mission of protecting the public interest by identifying and eliminating employment discrimination and resolving employment discrimination charges.

VoluntaryConfidentialNeutralEnforceableFair in appearance and reality

EEOC Mediation Program IntentPromote stakeholder satisfaction in the EEOC processAfford parties an opportunity to voluntarily and amicably

resolve workplace issues on their own termsDecrease inventory of charges requiring a full investigation

and improve Agency efficiency

Federal EEO Laws • EEOC Charges:

Title VII: Race, Color, National Origin, Religion,Gender

Sexual Harassment Pregnancy Discrimination Act

ADAAA: DisabilityADEA: 40 years or olderEPA: Wage disparity between gendersGINA: Genetic information*Retaliation & Hostile Work Environment

Reasons for Workplace Disputes

• Terminations

• Non-selection/non-promotion

• Workplace harassment

• Work assignments

• Disciplinary actions

• Personality Conflicts*

Right to Sue

Charging Party

Suit Matter of Public Record

EEOC Sues

Conciliation

Unsuccessful

Case Closed

Successful Conciliation

Conciliation

Cause

Charging Party Right to Sue

No Cause

Witnesses InterviewedOn Site Visit

Fact finding ConferenceSubpoenas Issued

Records Reviewed

Investigated

Case

Return to InvestigationNo Settlement

Case ClosedSettlement

ConferenceMediation

For Mediation

Parties Opt

Intake

Mediation vs. Investigation

Outcome within average of 90 Days

Investigations Presently Average over 6 Months

Litigation may take 4 Years or more

The Mediation Session

●Conducted face-to-face by highly-skilled mediators

●Relaxed and informal

●Focus is on resolution

●Representatives allowed (but not required)

●Normally includes private caucuses

●Usually lasts 3 - 5 hours

●Majority of cases are resolved

at the mediation session.

EEOC Contract Mediators• Must have 5 years of relevant experience• Must demonstrate substantive knowledge of laws enforced by

the EEOC and instruction in the theory and practice of mediation

• Must provide references• Selected through a competitive bidding process• Contracts run for a year with the option to renew by mutual

agreement for an additional 4 years

• In FY 2012, the EEOC completed mediation of 11,380 private sector charges and resolved 8,714 of them with benefits exceeding $153,300,000.00 for Charging Parties.

• The average closure age was approximately 101 days.• The overall settlement rate nationally is 77%.• Approximately 25% of cases are resolved on primarily non-

monetary terms.• These statistics do not include mediations done in the EEOC’s

federal sector or litigation programs.• Participants overwhelmingly support the Program and indicate that

they would participate again if given the opportunity.• See www.eeoc.gov for more information regarding the EEOC

Mediation Program.

Workplace Diversity

• Race• Nationality• Religion• Disability• Age• Gender• Sexual Orientation• Diverse Cultural

Backgrounds

Key Theoretical Concepts

• Impact of Diversity on:• How People Communicate• How People Perceive

Applies in the Workplace + In Mediation

2 Key Concepts

• Monochronic – Polychronic Communicators

• Low Context – High Context Communicators

Impact of Diversity on Communication

Monochronic PolychronicCommunication Styles

• Circular presentation

• Multi-issue focus• Focus on feelings

May view Other as rigid and cold & feel unheard

Monochronic Communicators Polychronic Communicators

• Linear, sequential (chronological) presentation

• Succinct outline of issues

May view Other as unfocused, disorganized, unprepared

Monochronic PolychronicSpeaker Sequence

Monochronic Communicators

• Prefer Uninterrupted Talk Time

May view Other as rude, interrupting, disruptive

Polychronic Communicators

• Prefer Overlapping Talk

May feel Other is monopolizing the conversation, has unfair advantage

Low Context High Context Communication

The degree of meaning derived

from actual words

v.surrounding context

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Low Context High Context Communication

• Verbal communication emphasized

• Direct • Explicit, literal meaning• “Say what you mean &

mean what you say”

• Nonverbal communication emphasized

• Indirect • Implied meaning• Context provides

meaning

Low Context Communicators High Context Communicators

Low Context High Context Communication

Expect Other to say what they mean; doesn’t look for hidden meanings

May miss implied meanings that Other assumes will be understood

Expect Other will draw meaning from full context of conversation

May infer meaning that Other does not intend

Low Context Communicators High Context Communicators

Impact of Diversity on Perception

•Selective Perception•Negative Attribution•Reactive Devaluation

Selective Perception

Looking at same thing but seeing it differently

Not seeing whole picture

Selective Perception

Selective Perception

• Parties get stuck because they think the other person is lying and they are telling the truth

• Parties get stuck because they feel that recognizing someone has a different perception means giving up a deeply-held belief/value

Negative Attribution

Negative Attribution

• Parties get stuck because they don’t trust the Other and “distort” Other’s intentions

• Parties read something negative into the Other’s actions, regardless of the actual intent

Reactive Devaluation

I have a great idea!

I hate it already!

Parties in conflict devalue / reject a proposal or idea simply because of who proposed it

• Parties get stuck because no matter what one party proposes for resolution, the Other Party rejects out of hand

• Parties get stuck because they want the Mediator to make a proposal

Reactive Devaluation

Scenarios – A Quick Quiz!

1. 1 party keeps talking over the top of the other

2. 1 party is very organized in their thinking and feels the other is very unfocused, unprepared, “all over the place”

3. 1 party seems to be reading something negative into everything the other person is saying

4. 1 party repeats herself because she feels the other is “not getting” what she is saying

5. 1 party seems to dismiss out of hand any suggestions by the Other

4 Mediation Roleplays

• Get into groups of 3• Decide who will be Mediator & Parties• Read Scenario• Make up any needed facts consistent

with scenario• Mediate for 10 minutes

Debrief Role-plays

• What challenges did you experience?• How did theory apply in practice?• What mediator interventions worked?• What party interventions worked?• What surprised you about the mediation?• Questions/ Take Aways

Additional SourcesBarriers in Mediation• Korobkin, R. “Psychological Impediments to Mediation Success,” 21

Ohio St. J. on Disp. Resol. 281 (2006)• Stone, D et al., Difficult Conversations – How to Discuss What

Matters Most (1999)

Culture The Minnesota ADR• LeBaron, Michelle, Conflict Across Cultures (2006)• LeBaron, Michelle, “Culture-Based Negotiation Styles,” Beyond

Intractability (2003)

The Minnesota ADR Handbook: A Guide to Mediation, Arbitration, and Other Processes for Advocates and Neutrals, by Gary Weissman, Linda Mealey-Lohmann, Leslie Sinner McEvoy (MN CLE 2011)