EEOC Expands Mediation Program

By Rebecca A. Winterscheidt

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced a six-month pilot program that will greatly expand not only the number of charges that are eligible for mediation, but also the time period in which mediations will be allowed. The ACT (Access, Categories, Time) mediation pilot began on July 6, 2020, and was implemented as an effort to expand on the EEOC’s already successful mediation program and further encourage the voluntary resolution of charges.

The EEOC, through its mediation program, which was first implemented in 1999, has conducted more than 235,000 mediations. Of those, the agency has successfully resolved more than 170,000 charges. However, until last week, those charges eligible for mediation have been limited to only those less-complex charges and typically did not include charges alleging systemic or class-wide bias. 

Under the new pilot program, while the EEOC still has to sign off on allowing a charge to proceed to mediation, it is anticipated that the number of mediations and successful resolutions will increase dramatically due to several factors. First, there is no charge for utilizing the EEOC’s mediation process. If the parties use a private mediator, the company typically ends up paying the entire cost of the mediation, including the mediator’s hourly fees. Additionally, the EEOC reports that the agency resolves charges in an average of 100 days through mediation. Those charges that do not involve mediation take, on average, nearly 290 days. Finally, if the parties are able to reach a resolution through the EEOC’s mediation process, it is possible to obtain not only a dismissal of the charge by the agency, but also a separately negotiated full waiver and release of all other claims that the charging party may have against the company. 

Another important change under the pilot program is that the mediation option will be available to the parties throughout the life of the charge. Currently, there is a very limited time period during which both parties must elect to use mediation or that option is thereafter closed to them. Finally, the EEOC has also revised its mediation protocols in light of the COVID-19 pandemic and the need for social distancing. The agency began allowing for virtual mediations shortly after the pandemic hit and plans to expand the use of technology to further enhance virtual mediations during the six-month pilot program.