Here Come the EEOC Charges- Should You Mediate?
Posted at Arkansas Employment Law by M. McClure on 03/15/2010

EEOC The EEOC seems to send a lot of charges to employers just before the end of each fiscal quarter, which is coming right up on March 31st.  After investigating the facts of an EEOC charge, one of the first decisions that an employer must make is whether to mediate.  

EEOC mediation provides a quick, confidential way to settle a dispute with an employee.  And, we are fortunate that the Little Rock EEOC office is particularly good at mediation.  Here are some issues to consider when deciding whether to participate in EEOC mediation. 

Does the employee still work for you?

Defending a charge is much more complicated when the employee still works for your company.  The risk of retaliation is significant because any adverse action against the employee, even where warranted, may create the appearance of retaliation.  Mediation provides a forum in which the employer and employee can reach a compromise to which both parties agree.  In some cases, the employer may even be able to negotiate the employee's resignation from the company, although that won't be inexpensive. 

How good is your evidence?

No employer is perfect, and sometimes the evidence of the issue is just not as good as it should be. Important documents may be missing or were never created.  Witnesses to the conduct may have already left the company, perhaps not voluntarily, and their recollection of the events may be unpredictable. 

Is this a matter you need to resolve quickly? 

You may have a business reason that is completely unrelated to the charge that requires a quick resolution. Defending an EEOC charge will cost time and money, and those resources may be better directed toward a settlement.   

Is this an issue that you would like to keep confidential? 

The mediation process is confidential; complaints filed in court are a matter of public record. 

Are you willing to put something - probably some cash - on the table?

Don't come to mediation with nothing to offer.  If the employee is still working for the company, you may be able to offer non-cash items like training or reassignment in the company.  If you plan to settle a charge with non-cash benefits, make sure they have significant value or the mediator may come to the conclusion that you are not negotiating in good faith.  

Bottom line: Mediation is not the answer for every charge, but in some instances, it can resolve a complicated problem quickly and confidentially.