Once you file a charge of discrimination with the EEOC, the EEOC often asks you if you’d like to participate in an EEOC mediation. These mediations, if both parties agree to participate, take place before the EEOC starts its investigation of the charge. So, what is an EEOC mediation and do you need a lawyer to attend with you?
How Does an EEOC Mediation Work?
If you ever file a lawsuit in South Carolina, you will, at some point, have to participate in a mediation. It often occurs 6-9 months into the lawsuit. A mediation is where the two parties to the dispute (defendant and plaintiff) meet together with a third party mediator. The mediator is typically a lawyer with many years of experience in the subject area of the lawsuit (employment, construction, family, etc.). The mediator is neutral and has no stake in the outcome of the case. The parties discuss the case with the mediator and then attempt to work out a solution to the lawsuit instead of going to trial. The mediator is paid directly by the parties to the lawsuit.
At an EEOC mediation, the timing, cost, and posture of the case are much different, although the mediation itself is generally conducted in the same format as in a state or federal lawsuit. The parties meet with mediator, discuss the case, and then separate into different rooms, with the mediator acting as a go-between to carry offers back and forth and attempt to resolve the case. The EEOC provides the mediator at no cost to the parties. (I’ve noticed, however, that without the ability to choose a mediator that your lawyer has worked with before and knows well, this can sometimes result in terrible mediators who lack the skills necessary to get a case resolved.)
Timing: The EEOC mediation usually takes place within 90 days of filing the charge, so it can be a faster way to resolve your case. Otherwise, the EEOC can take 6 to 9 months to finish up an investigation, which is one of the most frustrating parts of dealing with the EEOC. It also takes place before the employer has responded to your charge with its Position Statement, so the employee does not yet know all of the specific defenses that the employer may raise in litigation. Then again, the employee hasn’t had to spend several thousand dollars and months and months of their life waiting to get to this mediation either, as they would in a state or federal lawsuit.
Do You Need an Attorney to Come to the EEOC Mediation with You?
If you filed the charge of discrimination on your own without hiring a lawyer first, then this question probably comes to mind when your charge is selected for mediation. Generally, if I’m interested in an employment case, I agree to represent the employee throughout the EEOC process, including a mediation. However, I’m often approached by employees who already filed a charge on their own and just want an attorney to attend the mediation with them. But do they need an attorney?
Generally, I would say yes. At the very least, it can be quite helpful to the employee to have repesentation. Of course, that answer depends a great deal on the facts of the case, not the least of which involves how you pay your attorney to represent you at mediation.
Sometimes, I may offer to represent the employee for a flat fee, which may be appropriate in cases where the employee doesn’t have the strongest case but the employee just wants someone to come to the mediation and advise them. Other times, if the case is stronger and the potential settlement substantial enough to to justify me risking my time, I may offer a contingency fee (i.e., I only get paid if we recover something in settlement).
One of the key elements to making this determination is the amount of money the employee was making in wages/salary. The unfortunate reality is that an employee making minimum wage has a case worth far less in settlement value than an employee making $50,000 or more a year, since the amount of damages that an employee can recover in an employment lawsuit is generally tied to their lost wages. You make more money, then your case can be worth more.
What are the Advantages to Having An Attorney at an EEOC Mediation?
A skilled employment lawyer can help evaluate your case before the mediation and inform you of your chances of success if you file a lawsuit. The only reason an employer has to offer real money at mediation is if the employer is worried about how much they might have to pay if the employee wins at trial (i.e., what RISK do they face at trial of paying a large verdict?). A strong case is simply worth more, but an employee, on their own, will have a difficult time impartially determining the weaknesses of the case. A lawyer can do that for you.
Also, negotiating a settlement is a bit of a game (horse-trading, I’ve heard it called). There are techniques and elements that an experienced employment lawyer will recognize and can explain to you as the mediation goes on.
And finally, an experienced attorney can help to set your expectations and guide you to a fair settlement. I’ve had many clients come into a mediation asking for hundreds of thousands of dollars, even though the case is worth perhaps tens of thousands (or worth nothing). I’ve found that when an employee can talk with me about the value of a case and the possible outcomes if the employees decides to NOT settle, the employee feels better in resolving the case, because they are assured that the settlement represents a fair value of the case and that they aren’t leaving money on the table.