September 23rd, 2011

Mediation at the EEOC, Lower Your Expectations

As followers of WBI know, we oppose the use of mediation as a resolution strategy except in the mildest of all bullying cases. Most bullying cases are characterized as a form of violence, non-homicidal and non-physical, but clearly more severe than harassment and more impactful with respect to the target’s health (more depression, anxiety, hostility, trauma). So, it was a special opportunity for me to see mediation from the inside when I was asked to participate in an EEOC mediation session between a bullied target and her employer.

To be eligible for an EEOC case, the target (complainant) has to be a member of a protected status group. She was a woman and over 40 and eligible to file. A couple of the executives above her were male and that formed the basis of the complaint. Truth be told, her main assailant was also a woman (and an attorney at that). She had not yet filed a civil lawsuit in court. The chances that the EEOC would ever file a lawsuit on her behalf were slim to none.

Mediation, when agreed to by both parties, is a prefunctory second step in the EEOC case filing process. Both the target and employer agreed. I accompanied the target as her advocate. The day prior, we reviewed all details of her bullying ordeal and the impact on her life. Most important was her decision about her demands. She created combinations of cash settlement amounts, number of months of health insurance continuance, and pension-related contributions. She had high, medium and low payout combinations. We thought she was prepared for anything and was willing to negotiate.

Mediation was a day-long process. The mediator was a kind woman. Her background as a social worker offset, for us, her term as a judge. Her experience in mediation was extensive. She met with the target first to learn about the case because the EEOC form required only limited information. She put us at ease by offering the choice of face-to-face or shuttle mediation. The target wanted the mediator to go back and forth between us and the employer and their attorney in separate room. We never did see the other side that day.

After discovering the basic facts of the case, told partly by me to eliminate much of the emotion, relying on the target for correction of details, the mediator asked what the target wanted to reach a settlement. The mediator stated that we could be open with her since all communication in our room was confidential. She pledged to not tell the other side what she knew and to carry only the messages forward the target approved. We shared the high and medium settlement figures, implying that our opening gambit would be to ask for the highest amount to be made whole.

Thus began the expectation lowering process. Despite her stated sympathy for the target’s plight, the mediator clearly stated that complainants, in all the hundreds of cases involving her, NEVER collected such a huge amount. I think the target asked for 3 years salary and health benefits. The mediator left us to ponder what she said was an “unreasonable” demand. It was not yet time to negotiate settlement amounts.

The mediator left for her initial session with the employer. She returned with news that they did indeed attend willing to settle. She then directly addressed the target with news that the opening bid from not only this employer, but ALL employers, will be $0 (zero). We asked if that was fair. She said that was simply how the mediation-with-employers game is played.

We were so wrapped in the details the rest of the day that involved 22 mediator shuttle trips between the sides, we missed the big picture, the injustice. Mediators uncritically accept and perpetuate the dominance of employers in mediations by allowing the opening bid of $0.

The rest of the day was spent by the mediator racheting down the target’s demands. Evidence was suddenly questioned and discounted by the employer. Because the mediator personally felt attached to one aspect of the demand, she clung tenaciously to that piece to the end. However, when the target asked her to be as strong regarding more months of salary, she chose to not fight for it. Everything that was within the mediator’s personal boundaries set by experience, tempered by resistant, defiant employers, was achieved by the mediator. But she could not and did not advocate for the target when the demand conflicted with what she, the mediator, considered “reasonable.”

And that’s how it happened. The target was lucky to have a mediator who agreed to put the employer reps in a separate room. She was lucky that the mediator did not discount her story at the start (though she did accept the employer’s denial of mistreatment). However, the veteran mediator achieved a settlement much closer to $0 than the lowest settlement amount the target had prepared herself to accept.

The mediator was a good person, but one does not go to the EEOC to find a friend. The case ended for the target feeling jilted. It is true that she got more than zero, but the employer must have left feeling that it was a good day.


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This entry was posted on Friday, September 23rd, 2011 at 12:09 pm and is filed under Employers Gone Wild: Doing Bad Things, Tutorials About Bullying. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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  1. Jay Jacobus says:

    The mediator, being in the position of mediator, is always in favor of the agreement. A successful mediation is when both parties come together.

    The mediator should not favor one side or the other. The mediator should work to bring both sides together.

    While the target was not happy with the results, the mediator would be pleased to get a resolution.

    The bully’s starting offer of $0 was not where they thought the mediation would end up. Rather it was an “anchor” from which to negotiate. Had they offerred six months salary instead, that six months would have been their anchor. They coulld never hope to pay less than their anchor so they made it as low as possible.

    Apparently the target went into the negotiation without a negotiating strategy. The facts were apparently not a good strategy. The anchor was.

    In the future the target should take a strong negotiator into a mediation. The negotiator should have a good strategy, a target settlement and a bottom. Going below the bottom is not an acceptable solution.

    The mediators negative statement about the starting position is not germain. I am sure that many targets started just as high or even higher but they were all negotiated lower.

    Trusting the negotiator to represent one side or the other is not smart. Instead she will seek to move the parties ever closer.

  2. Jay Jacobus says:

    One factor that I forgot: the mediator wants to be hired again for other mediations. It is unlikely that the target will have any other mediations but the company certainly may. Consequently, she wants the company to agree and be happy with the agreement but sho only wants the target to agree.

  3. kay says:

    OMG, do I have so very many thoughts on this subject. I had the EEOC come in to help me back in Dec for horrific harassment within a very toxic environment. I had been working at this company for over 6yrs and had no idea the magnitude and full scope of this company’s lack of ethics or care for employees. They will indeed allow harassment to be rampent in all forms and then peg you, the quiet, most positive(and ironically I’d recvd a certificate honoring me as “MOST POSITIVE” in office and more)and very competent employee, as a problem.

    The things that happened at this place during my working hours would make you gasp in disbelief. I myself still dont believe it as I sit here with no income at all for the past two mths.

    EEOC investigator was nice, came in and saw right through the lies. I had nobody with me (but the lord)in the fact finding meeting and was a nervous wreck. I had to double up on the anxiety and depression meds on that day. I shook like I was freezing. I tried to hold strong as they lied, during it all, I could not believe it was happening. My heart raced so badly, and my chest hurt and felt like something like a rubber band was pulling from my chest up the inside of my left arm. I thought I’d stroke out (but i didnt let them know it)

    She asked me in a call if i wanted to stay or go. At that time, i was still hoping to have my job, i felt i surely deserved it and had that “they will not take it from me” mentality. I was still very much blocking out what had happend as a survival method. Its strange how robotic i was. later it hit me and I’m barely functioning

    She found cause in my favor and tried to negotiate a small amt, half my yearly pay but still a good chunk of money. Turns out, they said NO/nothing and I guess that was that. I was given a right to sue. ????

    I dont have any money saved for lawyer, a mortgage, kids, private school for one, and a diabetic kindergartener.

    I ended up going on heart monitor when my doc calc’d resting over 160 b/min. Every time after was very high as well. I’d not even mentioned it,I knew how I felt but she just calcd and told me.

    fast frwrd, sick pay ran out and when time to return over two mths ago, the company sent me to their paid “independant” psych evaluator and he told me that he did not want to talk about what the male sup did, and that he’d “ask the company” then he said that all other psych’s and doc’s I’d seen were wrong in their diagnosis of PTSD. Then he said that the meds Zoloft and Seriquil were wrong, He again told me that i was paranoid even when I gave detailed verbatim incidents and intervention by another co worker b4 the event. He told me that he did not want to hear. I was in shock. This was the second tim he’d said that to me so this time I brought a recorder in my purse and recorded the entire discussion. he was atrocious.

    he said that the company told him that the EEOC found nothing. Then when i said that is not true he began to nearly say i was lying and told me that the info could be gathered. I told him that i know about FOIA and offered to show him the EEOC forms and he then said “you could have doctored your forms, i would not trust your forms. I’d trust the company’s forms and they have already told me that there was no conciliation or cause finding, nothing” I was shocked and told him that is a lie.

    i was to be going back into that hell after that mandatory talk with him, even after all of my councelers and docs diagnosed PTSD. They made me sit with their paid guy.

    since then they have not called me back to work and caused me to have no income for about 3mths now. I dont know what to do. i have let some folk listen to the recording they cant blve that is a dr. he was atrocious. his recep knows i record’d i plyd it 4 my witness,when leaving.

    He was adamant telling me that there was no cause finding and that I’d have to be nearly killed to have PTSD. I sent a letr in Aug to find why not calld 2 wrk no rsps yet

  4. kay says:

    I didnt even have a mediation that i was present for. After the fact finding meeting where we were all in the same room,I recvd a call from the investigator who asked only if i wanted to stay or go. I was in such a state that I could not think to ask her if I should just go… and if that would make them more likely to pay me.

    I dont know if that would have mattered, but i ended up going on leave right after placed on heart monitor after hearing a blow up one night coming from the dept next door. we all sat and listened to an employee yell “get away from me, i’m tired of it. You make my work so hostile”. the employee who’d said this was a seemingly kind mild mannored employee fed up with another, who is said to be nearly out of control. I guess that was the last shoe for the fed up employee.

    everyone listened from their desks and began to speak of it. One said “should we be getting under our desks” kind of jokingly, but not.

    it is a toxic environment and that is only but one incident. I should have known when nearly 7yrs ago, another mild mannored corp trainer that was visiting to train us as new hires, stood in training and nearly became emotional telling us of her ordeal of harassment/bullying in her corp unit that had been long lasting. She was still shaken. we all listened in the group, but i somehow did not see it as a red flag. Thinking back i wonder WHY DIDNT I?

    I think that the excitement of a very decent living wage paying job that i loved was clouding my judgement. I should have RAN! Later another woman visited and sat in the break room and told of how she’d quit for conduct of a supervisor. Still i was new and could not let myself listen. I’d never had troubles at a place of employment. I had no idea.

    Now I find that they have a very big number of EEOC filings over the past. I had no idea. Why would they tell their paid guy that there was no cause and set me up to recv an opinion from him as an independant evaluator, of paranoia. He never even wanted to talk about or hear the incidents that have me in this condition. He would not even let me speak of it and said he’d have to ask the company, that was first hour I’d seen him in winter as mandatory talk. it was strange. Then now after i was released to work by my doc and all forms given, they sent me back again to their guy and he was worse. saying i could have doctored my EEOC forms. I’d brought them along and offered to show. He nearly said I was lying.

    It was a huge emotional set back, I’d not even really improved and am struggling so much…… I’M TIRED. DONT WANT TO SLEEP, DONT WANT TO WAKE UP. DREAMS OF IT. THOUGHTS ALL DAY….. I’M TIRED.

    I dont know the legality of them just leaving me out of work for over two mths no contact. I had a return to work and all provided to them. They have said nothing. I’m sure they know I taped it because when he nearly pushed me out of the room, i was calm as is my demeanor but in shock. I immediately told my witness i’d brought to wait in the recep area and pulled out the recording and began to play it as we left. I have not told my company this, but did tell of verbatim what he’d said about the co. saying nothing was found and not wanting to talk about what happened at all. They should not have sent me there to be told i was paranoid, I told them in letter how i felt.

    I have kids, no income and I’m Tired. they did not respond to my letter at all. they keep sending me a paycheck stub with no deposits. I still have med benefits, but still no word of when they will let me return to work. I know this has to be illegal. its forcing me into financial ruin without explanation and no further instruction from them. I know i need help. the should be made to explain this and pay for the last two 1/2 mths no income.

    The eeoc not much help. so i wait for answers. I know I need a lawyer, but no $ i just wanted to work.

  5. jusbeenme says:

    Can you get an attorney to take your case on a contingency basis ? I sure feel for you and I mean literarily. PTSD is awful and for people who have never been bullied/discriminated against have NO idea the impact ! You need to find a lawyer who works with employees NOT employers !Good luck to you ! ~b

    • kay says:

      I tried calling the gov to find out if it is right that I come off of leave and supply all documents per my employers request yet after the horrific appt that they’d forced with their guy, I am still out of work no contact. Even as the company knew my mental/emotional condition, yet they took no care at all and lied to this Dr telling him that the EEOC found nothing so as to get a paranoia diagnosis for the records. Honestly I dont think that it would have mattered that they lied. They’ve used this (DR) for years and he indeed seemed eager to provide that diagnosis. Heck, he wouldnt even let me speak of what had happened. It was a horrible conversation. None of this gives me any hope for ethics, laws, or even humanity. I trust almost no one now. Still rational, but I have seen way too much and now have it on audio recording. Its a different life now.

      The gov for wage dept that enforcing FMLA sys that they can do nothing because it only protects 12 week leave. Per our employment policy, we are authorized to take 6mths. Needless to say I needed the entire 6 and need about 6 decades to even partially recover. Im stunned. They gave me a lead for help, but I’m tired. When you call lawyers at least in my state/city, it is of no help and only further depresses you to keep finding dead ends. I have no money and contingency is tough. Need witnesses willing to come forward even with the blatant intimidation of witnesses. Even those who verbally opposed, had retaliation.

      It feels like justice is for others, maybe only on television or something. It feels so impossible. I’m tired. I want to smile when opening a door for a stranger or just all the small things that I would intentionally do each day. I enjoyed my life and was very careful of where i put myself. No bars, no drinking, no smoking, same man, second EVER boyfriend and father of all of my children for sixteen years now since i was a teen. Church, and common decentcy. WORK WAS SUPPOSED TO BE SAFE.

      Let me stop using space with my rants.(lol) thanks for your words 🙂

  6. kachina says:

    ” True compassion is more than flinging a coin to a beggar. It comes to see that an edifice which produces beggars needs restructuring.” -Martin Luther King, Jr.

  7. guest says:

    I filed 4 charges at the EEOC against my employer with the help of an attorney who has offices in PA. I don’t care how bad it gets, I will never waste my time again with the EEOC. They were more concerned with mediation then investigation. My case was never sent to investigation because the mediator kept pushing for a settlement. After attending one mediation and walking out, I advised my attorney to let the charges go to investigation. The mediator kept pushing and my attorney finally agreed to a settlement, disregarding what I had stated I wanted.  My choice was accept the settlement or proceed without an attorney. It wasn’t worth all of the paperwork or aggravation. We pay taxes to employ these people. Talk about government waste. 

  8. Screweeo says:

    I’ve been systematically bullied for reporting threats by a supervisor at my job with the state here in california. EEO has stonewalled and even given information to my employer about me because they work in the same building. The EEO is a joke. They are robbers that come to hurt you after you’ve already been rapped. They add insult to injury and justify the illegal actions of scum that have no business in management positions in the first place. Don’t file any investigation requests with the EEO first. File with the department of fair housing and employment because they oversee the EEO and have the authority to back them down if they are acting like idiots. The DFHE does have an agreement with EEO that whoever receives the complaint first gets to do the investigation and the other will support so make sure it’s not the EEO first because they defend scum and bullies and put the little guy in the trash. Screw you EEO! You are human garbage and a worthless resource to the common worker!!!!

  9. greenacres666 says:

    A medical practitioner is NOT allowed to discuss your sessions with the employer. There should be NO discussions between the medical practitioner and the employer even if the employer is paying the bill. For a psychiatrist to not allow you to discuss issues of importance in your sessions is also NOT allowed. AND the gag order does not pertain to mental health counselors who are bound by confidentiality. A victim MUST be able to discuss the issues and work through them.

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