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EEOC Mediation and Why You Should Hire an Attorney to Represent You

If an employee encounters discrimination or retaliation in the workplace based on their protected class, they may file a complaint with the Equal Employment Opportunity Commission (EEOC). Once a charge is filed, employees are often left questioning what’s next.


In Arizona, after a charge is filed with the EEOC, the EEOC may recommend it for mediation. Mediation is a private and non-formal method to address conflicts with the aid of a neutral third-party mediator. This mediator is trained to help both the employer and the employee achieve a resolution. The main purpose of mediation is to resolve employment-related issues in a single day, resulting in both parties signing a settlement agreement.


The mediation process requires the employee to present their case or perspective. To increase the chance of resolution, it is best if the employee understands the law that pertains to their case. As such, it is strongly recommended for you to contact an attorney prior to your mediation date.


Employers Have to Agree to Participate

EEOC mediation is voluntary. If the EEOC recommends the case for mediation, they will contact the employer to ask if they are interested in participating in the mediation process. If the employer declines to participate, the charge is usually sent to the EEOC’s enforcement unit. The EEOC will request that the employer provide a position statement addressing each allegation raised in the charge. The employee will then be tasked with rebutting the information in the position statement. Based on the information and evidence collected, the EEOC will decide whether to investigate the case further or issue a notice of right to sue letter. If the letter is issued, the employee will have 90 days to file in federal court.


Alternatively, the employer may agree to participate in the mediation process. This is generally good news for the employee, as it means that the employer is willing to discuss the issues first-hand and try to come to an agreement. If the employer agrees to participate, the employee will receive an email from the EEOC providing potential mediation dates. Mediations are usually conducted virtually via Zoom. It is recommended that an employee contact an attorney as soon as they receive an email from the mediator with potential mediation dates.


Prior to mediation, employees will also be asked to sign a confidentiality agreement to ensure the privacy of all discussions, as well as a mediation agreement to confirm their participation in good faith.


What Happens at Mediation

Mediation is a lengthy process that lasts throughout the day. It typically begins with the charging party or employee giving an opening statement. During this stage, the employee or their lawyer will provide a detailed account of the events that took place. It is essential that the person delivering the opening statement has a comprehensive understanding of the claims being presented and the applicable law. An impactful opening statement will address each element of the claim, allowing both the opposing side and the mediator to gain a better understanding of the events and why they were unlawful.


After the employee makes their opening statement, it's the employer's turn to give its perspective. Employers almost always have an attorney representing them. During this phase, the attorney will explain the company's reasons the events that took place, as well as a nondiscriminatory and/or nonretaliatory motivation for their actions. It's essential for employees to take notes during this statement because the mediator will ask follow-up questions to both sides.


Once the opening statements have been made, the employee and employer will be separated to commence negotiations. The mediator typically starts by addressing the employee, asking them to explain any discrepancies in the employer's opening statement, and ensuring that the employee has addressed all the elements of their claim or claims. After that, the employee will make an opening offer, which can be both monetary or nonmonetary, and the mediator will relay this offer to the employer.


Throughout the day, the mediator will act as a liaison between both parties, presenting offers and counteroffers and relaying new information to each side as it becomes available. The mediator will also ask questions to both parties to clarify their positions. If mediation proves successful and the parties agree, the mediator will initiate settlement by ensuring that both parties agree to draft a mutual settlement agreement. Generally, the employer is responsible for drafting the settlement agreement.


If negotiations fail, the case will be escalated to the EEOC investigation stage. Often, employees are left with no other option but to pursue litigation, which can be a time-consuming and expensive process. Therefore, it is crucial to be fully prepared before entering into an EEOC mediation. This is the employee's best chance to resolve their claim early on in the process. 


Why It's Best to Hire an Attorney

1.      You must understand the law. To achieve a positive outcome in EEOC mediation, it is crucial to effectively demonstrate how your employer's actions were in violation of the law. Failure to do so can result in a weaker position during negotiations, making it less likely that the employer will make concessions. The attorneys at Robinson Law Offices possess a comprehensive understanding of employment law and will work diligently to ensure that your claims are presented in a compelling and persuasive manner.

2.      Employers always have representation. When it comes to mediation in employment disputes, employers almost always have legal representation. This means that if an employee decides to enter mediation without representation, they may be at a disadvantage. Furthermore, defense attorneys are more likely to engage in reasonable negotiations when dealing with another attorney, rather than an employee directly.

3.      You must understand how negotiations work. To negotiate effectively, it is important to have a good understanding of the process. An experienced employment attorney who has negotiated with the EEOC can help you with this. At Robinson Law Offices, we can provide guidance on the value of your claim, strengths and weaknesses associated with your claim, what to say and omit during mediation, how to respond to an employer’s offer, and when to accept a fair settlement agreement. Without this knowledge, employees risk losing out on a reasonable settlement or not receiving a settlement at all. 

4.      Negotiating nonmonetary terms. EEOC mediations may involve negotiations beyond just monetary compensation. For instance, an employee may wish to negotiate their rehire. In such cases, a settlement agreement must be drafted and agreed upon by all parties involved. At Robinson Law Offices, we assist in negotiating non-monetary terms, and we explain each provision of the settlement agreement to our clients in detail. We may also add additional provisions, such as a change in separation status, non-disparagement and neutral reference provisions. These provisions may help clients with future employment opportunities. 

5.      Mediation days are stressful, to say the very least. When an employee is required to confront their employer and discuss past wrongdoings, it can be an emotionally challenging process. It can bring up past work-related trauma and cause significant stress for the employee. However, by hiring Robinson Law Offices, employees can feel relieved knowing that their attorney will work in their best interest. 

Robinson Law Offices can help.


Robinson Law Offices has successfully assisted all types of employees in the EEOC mediation process. If you have received an email from the EEOC regarding mediation, contact Robinson Law Offices to speak with an attorney right away.


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