Recently we discussed a survey conducted and disseminated by Merrily Archer, Esq. about EEOC mediations.   Her take: the EEOC mediators do all they can to push a settlement, including various threats of litigation and EEOC enforcement. In fact, she said that with ADR being the EEOC’s “biggest cash cow,” to settle cases for as much as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and threat of EEOC enforcement actions.

A number of readers took issue with her assessment, and we included their comments in a post on May 21st entitled “EEOC Mediators: ‘They Aren’t That Different from Other Mediators.’

Ms. Archer read our post, and posted on her own blog – EEO Legal Solutions – a piece entitled “Of Course EEOC Mediations Are (or Should Be) Different.”  Because her response was directed to the comments made by some of our readers, we felt that it was appropriate to re-print it here in full (with her permission), to continue this valuable dialogue.

Merrily wrote:

“In response Fox Rothschild’s republication of our EEOC Mediation Survey, a handful of practitioners weighed in: (a) one claimed that EEOC mediations are just like private ones; (b) a contract EEOC mediator insisted he would never make this misrepresentations specifically identified in our survey; and (c) another practitioner reported he has had only positive experiences with his local EEOC mediators, here.

The first point—i.e., EEOC mediations are just like private mediations—merits a more substantive response, below. As for the other two, the sheer volume of responses (780) and strength of the findings (e.g., over 70% of reporting threats of “reasonable cause” determinations and prosecutions) account for one-off, individual experiences. That is, we designed a quick survey to elicit the feedback of numerous practitioners, not just the vocal ones, and to draw statistically supportable conclusions, not just report our opinions and personal experiences. We’re delighted that some practitioners have reported good experiences, but the whole point of a survey is to develop an understanding broader than anecdotes.

Further, our survey did not intend to measure “satisfaction,” on the rationale that participants could simultaneously report satisfaction and evidence of mediator deception. For that reason, we asked only whether EEOC mediators made a specific representation, and then juxtaposed those findings against published EEOC data and information.

Three Ways EEOC Mediations Are (or Should Be) Different from Other EEO Mediations

Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion

Our survey revealed that EEOC mediators regularly threaten employers with “reasonable cause” determinations (73.7%), prosecutions (70%), and even systemic investigations (61%). We then tested these representations against the EEOC’s own Priority Charge Handling Procedures (PCHP), and clarified that if any of these enforcement outcomes were LIKELY, the EEOC would not have routed the charge to the ADR program in the first place. We also compared these representations to the EEOC’s own enforcement data, noting a considerable gap between their reported frequency and REALITY.

Unlike a private mediator (or even a judge), the EEOC was entrusted with numerous enforcement powers—e.g., to investigate, to issue subpoenas, to render determinations, and to prosecute employers. Most of these activities occur below the surface, out of public view and under the heavy armor of “government deliberative process” privilege and statutory confidentiality, which the EEOC cites to resist judicial scrutiny of its administrative processes (e.g., mediation, investigation, conciliation). These processes, however, possess tremendous power, by themselves, to inflict terrible financial pain and inconvenience on employers, even before actual PROOF of an EEO violation in court. Thus, our finding that EEOC mediators regularly brandish these powers (disingenuously, in reality) to encourage employer settlement payouts raises legitimate questions about (a) the objectivity of the process; and (b) the responsible use of governmental power. The EEOC I served under Clinton would not have allowed Field personnel to get so close to the ethics fence.

Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its “Efficacy” by Its Employer Collections

Different kinds of mediators come with different motivations. Private mediators whom I have worked with over a long litigation career get paid by the hour and so, they seem motivated to help the parties get a deal done no matter how long it takes. Magistrate judge mediators make their same government salary while they’re juggling five other matters in addition to your mediation, and so, they seem motivated to make your case (and you) go away as quickly as possible. Our study ultimately asked this question: if (a) the EEOC equates efficacy with employer settlement payouts; and (b) the ADR program historically generates more settlement payouts than any other EEOC program, what would EEOC mediators say to make employers pay?

Our study suggests that EEOC mediators may be neutral toward the parties and the dispute, but certainly not toward OUTCOME, unlike any other mediation context. On the contrary, if success is ultimately measured in dollars, EEOC mediators are inherently allied with Charging Party’s counsel, whose primary motivation is to maximize monetary payouts. Perhaps for that reason, employers and practitioners who show up to EEOC mediations empty-handed or with small purses often encounter the barb that they are not negotiating in “good faith.” In fact, EEOC mediations differ substantially than other kinds of mediation because at the outset, the mediator shares the underlying motivations of one of the parties.

Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers

Our study showed that EEOC mediators often forecast gloomy litigation outcomes and juror preferences. Unlike private mediators or magistrate judges, most EEOC mediators are not lawyers; rather, most of them are longtime EEOC investigators who got promoted into their positions when the ADR program launched in the late 1990’s. Thus, unlike the sage insights of battle-hardened judges and former litigators, most EEOC mediators mimic the “pro-wrestler speak” of trial lawyers.

Fancying itself an advocacy agency, the EEOC frequently forgets that important concomitant duties of balance and fairness that accompany prosecutorial discretion and governmental deliberative process. To suggest, therefore, that EEOC mediations are just like any other mediation (a) misses the point of our survey; and (b) ignores the public duties (e.g., fairness, balance) that temper governmental power.

Ultimately, given the EEOC’s focus on employer settlement payouts as the measure of its efficacy, we question whether the EEOC’s programs, processes, burdens and initiatives have WORKED to actually deliver equal employment opportunity based on far more meaningful measurements of progress. We’re trying to further the march toward EEO by asking, What can we do differently (better) to improve access to top jobs, equalize the burdens of unemployment, become an international leader in the benefits of multiculturalism, level the playing field in the federal sector, etc.? At this historic milestone (i.e., Title VII’s 50^th on 7/2/14), it is not enough to say “We have much work to do,” a clear EEOC talking point. Rather, responsible policy-making requires us to evaluate whether past interventions have proven effective and to develop positive approaches based on programs that have actually worked.”