Wednesday, June 1, 2022: Survey Says…Participants Prefer Online Mediation For EEOC Charge Resolution
The U.S. Equal Employment Opportunity Commission (EEOC) announced the release of five independent studies of the Agency’s mediation program.
E. Patrick McDermott, professor of legal studies and management and department chair at the Franklin P. Perdue School of Business at Salisbury University, and his colleague Ruth I. Obar analyzed 1,234 online participant surveys and 139 mediator surveys to complete the studies. Of the participant surveys, 782 were from employers and employer representatives, and 452 were from charging parties and charging party representatives. The researchers compared the results with a 2000 external evaluation of EEOC’s mediation program and EEOC-administered survey responses from June 2018 and July 2019.
“In 2000, we reported that the EEOC had ‘hit a home run’ in its in-person mediation program. Twenty years later, without a playbook on the transition from in-person mediation to online dispute resolution (ODR), there is a similar result with even greater import,” said McDermott. “This ODR program data suggests to the dispute resolution community and to the U.S. legal system that new and flexible online mediation procedures are seen by all the parties and representatives as efficient, flexible, cost-saving, attractive, and preferable to traditional in-person mediation.”
The participant study also found that online mediation significantly increases access to justice for charging parties. About one in five charging parties do not want to be in the same physical location as their employer, and the virtual format provides “a safe space” for those participants. It also provides employers with more flexibility, making them more likely to participate in mediation. Nearly two-thirds (62%) of employers reported that the availability of online mediation made it more attractive for them to participate in the EEOC’s mediation program.
Studies on EEOC Mediation Program
1. An Evaluation of the Equal Employment Opportunity Commission Mediation Program examined the program from the perspective of charging parties and respondents and their satisfaction with the EEOC mediation process. The survey of parties who participated in the program found the process to be fair and neutral, and 96% of respondents and 91% of charging parties indicated they would use the mediation process again if the opportunity arose, even where the results of the mediation were different than they had anticipated.
2. The EEOC Mediation Program: Mediators’ Perspective on the Parties, Processes, and Outcomes. This report presents mediator feedback on the dynamics of the mediation process, including conduct that facilitates the resolution of the dispute:
- why the dispute was not resolved,
- mediator tactics,
- behavior that acts as a barrier to a resolution,
- the role of legal counsel and other representatives, and
- the turning point(s) in a successful mediation.
The report also focuses on mediator suggestions regarding process improvements and the perception that charging parties may benefit from legal representation. EEOC has provided mediator training on “leveling the playing field” and continues to explore partnerships with qualified outside entities, such as the American Bar Association and local bar associations, to provide pro bono representation to charging parties and employers.
3. An Investigation of the Reasons for the Lack of Employer Participation in the EEOC Mediation Program. The survey found that most employers are well informed about the EEOC mediation program but chose not to use it because they have conducted an internal investigation and believe the specific charge to be without merit or have concluded that EEOC will not issue a reasonable cause finding. The report concludes that the perceived quality of the charges and not the perceived quality of the mediation program determines whether the employer will mediate the charge.
4. EEOC Mediation Participants Experience in Online Mediation and Comparison to In-Person Mediation. This study found that 98% of employers and 92% of charging parties would participate in the EEOC’s mediation program again. Most participants (nearly 70%) reported that they would prefer online mediation to in-person mediation in the future. Participants cited flexibility, convenience, cost savings, and a “safe space” as reasons for choosing online mediation.
5. EEOC Mediators’ Perception of Remote Mediation and Comparisons to In-Person Mediation. This study shows that EEOC mediators found that online mediation is:
- easier to use and more flexible than in-person mediation;
- achieved similar or better quality and value of settlements for both parties; and
- increased access to justice for charging parties.