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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