Last week we discussed a survey conducted and disseminated by Merrily Archer 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 mcuh as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and threat of EEOC enforcement actions.
A number of knowledgeable readers responded.
Robert Arrington, an attorney in the Johnson City, Tennessee area:
“This is well worth reading, but my personal experience with EEOC mediators is that they aren’t that different from other mediators (including me) when they tell respondents about projected defense costs.”
Simon S. Aronsohn, a poet and mediator in the Harrow, UK area:
“I have no experience with EEOC mediations but if the mediator has a fixed remuneration independent of result the mediator has no stake in the result. I would agree with Robert that legal costs are part of reality testing in any event. With EEOC there must also be an issue of negative publicity that must be taken into account.”
Paul McDonough, a lawyer and mediator/arbitrator for the American Arbitration Association in NYC:
“I was a contract mediator for the NYC EEOC office for about ten years before budgetary cuts did away with us. I also represented employees and employers before both contract and staff mediators.
I found the mediators to be effective and reasonable. It is important for both sides to realize the consequences of not settling at this early time. It was for this reason I suggested as a member of the SDNY mediation committee that employment cases be referred to mediation as a matter of course.
No one at the EEOC misrepresented what was likely to happen, in my experience. However, just pointing out the dire realities of litigation and it’s uncertainty is enough to make rational people decide to settle.”
Anyone else have mediations experiences to share?