This is a two-part post.   Way back on July 16, 2012 we began discussing the EEOC’s mediation program.    The EEOC had reported that it had entered into a “National Universal Agreement to Mediate” (or “NUAM”) with Family Dollar Stores, Inc.:  “Under the terms of the NUAM, all eligible charges of discrimination filed with the EEOC in which Family Dollar Stores is named as an employer/respondent will be referred to the EEOC’s mediation unit, as appropriate.”

We asked: What IS a National Universal Agreement to Mediate? And why might it be a good thing to know about?

mediation : Two businessmen shaking hands Illustration

In this Part I we describe the mediation program.

In Part II, we will ask whether it is a “win-win” program, as the EEOC says — given the less than favorable reviews of some who practice before the EEOC who claim that the EEOC attempts to “bully” employers.

The EEOC Is Charged With Attempting To Mediate

The EEOC is charged with enforcing federal laws against employment discrimination and can investigate charges of discrimination against employers who are covered by the laws, make a finding of discrimination if appropriate, and then try to settle the charge or even file a lawsuit to protect the rights of the individual who filed the charge and the public (although it files relatively few cases itself, usually leaving it to the affected individual to sue).

Significantly, it also has the authority to seek to prevent discrimination before it occurs through outreach, education and technical assistance programs, and to mediate charges of discrimination before they reach the litigation stage.

mediation : illustration of two persons exchanging opinions or thoughts

National Universal Agreement to Mediate (“NUAM”)

Mediation is a voluntary program, and both employer and employee may opt out of it.   A NUAM is, according to the EEOC, “an agreement between EEOC and an employer to mediate all eligible charges filed against the employer, prior to an agency investigation or litigation. … [and] substitutes for the individual agreement to mediate which the parties sign prior to a mediation being conducted.”

The EEOC touts the program as “provid[ing] a way to resolve workplace disputes promptly and more efficiently before any investigation occurs, should a charge be filed.”   Mediations are confidential unless the employer has agreed otherwise, and the NUAM program gets you quicker mediation than the standard mediation program. The EEOC also encourages participation in the NUAM program, because it “demonstrates from the outset a company’s willingness to mediate on cases eligible for mediation – this may contribute to the ultimate satisfactory resolution of a matter.”

It is always a smart idea to be on the EEOC’s good side. And mediation, if successful, is a heckuva lot cheaper and time consuming than litigation.

The EEOC claims that “Expanding mediation is a key component of the EEOC’s efforts to improve operational efficiency and effectiveness. … Since the full implementation of the EEOC’s National Mediation Program in April 1999, more than 148,000 charges of employment discrimination have been mediated, with over 70% being successfully resolved.”

“Nationwide mediation agreements like this are a classic win-win,” said Nicholas Inzeo, Director of the EEOC’s Office of Field Programs. “NUAMs are a non-adversarial and efficient way for companies to handle discrimination charges using the EEOC as a partner and advisor. EEOC mediation encourages a positive work environment, and the company saves time and money.   Everyone benefits.”