Mediation in Employment & Discrimination Case What to Know


Get the best possible settlement from you mediation at the EEOC in your discrimination or retaliation case. This video discusses settlement strategy, understanding case value, how to make a settlement offer or counter offer, and how the actual mediation and negotiation takes place. For more information visit Text (partial): Mediation – The basics Mediation at the EEOC or state agency (FEPA) Anti-discrimination agencies like the EEOC will often require mediation or conciliation. This is an opportunity to negotiate with the employer.   The mediator is not on anyone’s side Mediation typically involves sitting down on one side of a table from the opposing side with a neutral mediator. The mediator is not a judge. He may express views about the case and settlement offers, but he has no power to force anyone to take any action or take any settlement offer. This is not a trial or substantive hearing Typically the parties agree that nothing said during the mediation can be disclosed outside of the mediation. This allows the parties to discuss the issues openly. Nothing that is said can be used in court. Come prepared with a negotiating starting point The mediator will expect the complainant employee to begin the negotiation. It is typically helpful to have a negotiation starting position prepared beforehand. Mediation – The basics Usually the Parties sit Across the Table Mediators usually sit the parties down at a conference table across from each other. The mediator will introduce the two sides and the ground rules. The Employee Usually Speaks First The employee or her attorney usually has the first opportunity to speak and provide her side of the story. This usually means that the employee has about 5 minutes to state what happened and how it has affected her. Sometimes the mediator will read directly from the discrimination charge and allow the emplyer to respond. The Employer may Respond, or not at all The employer may simply deny the facts asserted by the employee or can give an explanation for its actions. The  The Mediator Usually Splits up the Parties to Negotiate Once the parties have had their say, the mediator will typically split the parties into separate rooms to discuss settlement matters. You can ask the mediator to communicate with the other side about either an offer or additional facts that you have. Sometimes, the lawyers may ask to meet with each other directly if that would help the parties reach a resolution. BATNA: Best Alternative To a Negotiated Agreement The employer will base its offer on the best alternative to settlement Best Alternative to a Negotiated Agreement Understand Your Potential Damages Understand Your Likelihood of Success Damages x Likelihood of Success = BATNA Settlement Agreements All Settlements are Later Written Down NDA – Non-Disclosure Agreement Global Settlement Tax Treatment