Last night, in an American Bar Association study, I read that juries decide less than one percent of federal civil cases. Sometimes parties win on motion. But most of these cases settle somewhere along the way. Knowing this — and considering the cost of litigation — it shocks me that more businesses don’t attempt to resolve employment disputes pre-litigation.
So, in a few hundred words and with the help of some recent statistics from the U.S. Equal Employment Opportunity Commission, I’m going to try to convince you to jump on the early mediation train.
Early EEOC mediations generally settle.
Yesterday, the EEOC released its 2021 Annual Performance Report (APR). Among other things, the APR explores topics such as agency and mission information and performance results. The EEOC touts its Alternative Dispute Resolution Program as part of the performance results. When an individual files a charge of discrimination, the EEOC will generally offer the charging party and the employer-respondent the chance to mediate the individual’s claims. If both sides agree to mediate, the EEOC will pause its investigation, and the two sides will go to mediation.
In the fiscal year 2021, the agency conducted 9,365 mediations and resolved 6,644 of them. That’s a 71% success rate.
And if you don’t settle, you’re getting free discovery and the chance to evaluate the plaintiff-to-be.
On average, EEOC mediations settle relatively cheaply.
Think about those times you’ve had to litigate in state or federal court. What was your cost of defense? On top of that, how much did you pay to settle the dispute?
You probably would have paid less if you had just gone to EEOC mediation and settled there.
In the fiscal year 2021, the EEOC recovered $176.6 million in benefits to charging parties. That seems like a considerable number — it’s $20 million more than the agency recovered in 2020. But divide $176.6 million by 6,644 (the number of settlements), and the average settlement is only about $25K. I’ve had insurance carriers tell me that it’s a no-brainer anytime they can settle an employment dispute for under $30,000 pre-litigation. So, a discount on that is even better.
EEOC mediation is free.
That’s right. Zero, zip, nada.
It costs you your time and an attorney, should you wish to use one. (You don’t have to have an attorney, but I strongly recommend it.)
EEOC mediation is so convenient.
Pre-pandemic, the EEOC conducted mediation sessions in person. However, in-person mediation was inconsistent with safety guidelines implemented during the pandemic. Beginning in the fiscal year 2020 and continuing throughout 2021, the EEOC integrated and employed Zoom for Government as its primary platform for conducting mediation sessions to allow mediators to use private virtual rooms with parties.
Translation: You don’t have to leave your home or office to participate.
I’m an EEOC mediator.
For over a decade, I’ve mediated nothing but employment law matters as a go-to neutral for both employee-rights and management-side attorneys to resolve disputes for their clients. I’m a volunteer EEOC mediator (and a court-appointed mediator in the federal court system). Shameless plug: I also mediate privately. Here is my mediator CV.
My experience as an EEOC mediator is consistent with the EEOC statistics listed above — perhaps with a higher success rate).
No business likes being accused of discrimination.
And I get that many of you have the impulse to stand on principle and fight. If you’re willing to put your money where your mouth is and pay a hefty retainer to litigate to the end, you’re my kind of client!
But many companies either have insurance or want to make a business decision. And whether you’re my client or someone else’s, consider early mediation at the EEOC.