EEOC Announces that Virtual Mediation is Here to Stay
Knowledge

EEOC Announces that Virtual Mediation is Here to Stay

Key Takeaways:

  • Since mid-March 2020, mediations of administrative charges conducted under the EEOC’s voluntary mediation program have been held remotely via telephone or video platform.

  • The EEOC has announced that it will continue to offer parties the option of engaging in mediation online, even as the EEOC transitions back to offering in-person services.

  • Two studies were commissioned by the EEOC to evaluate the efficacy of the virtual mediation program and participants’ levels of satisfaction with the same. These studies indicate a strong preference for virtual mediation by employers, charging parties, and mediators.

The Equal Employment Opportunity Commission’s pivot from in-person to virtual mediation services, necessitated by the COVID-19 pandemic, has proven to be a popular move with employers and employees alike. In studies conducted by Dr. E. Patrick McDermott and Dr. Ruth Omar, researchers examined participants’ evaluations of the EEOC’s virtual mediation program as compared to the assessment of the in-person mediation process from surveys collected from charging parties and respondents who mediated in 2018 and 2019. Researchers also polled mediators to evaluate their impressions of the virtual mediation process.

Impressively, 92% of charging parties and 98% of employers surveyed reported that they would be willing to participate in the EEOC’s online mediation process again. Approximately 70% of all participants surveyed responded that they would prefer mediating virtually in the future even if in-person mediation was offered, and 62% of responding employers reported that the availability of virtual mediation made participating in the EEOC’s mediation program a more attractive option for charge resolution. Only 13% of participants expressed a preference for in-person mediation. Notwithstanding the health and safety factors relating to the pandemic, the data collected also indicated that participants preferred online mediation for a variety of non-pandemic related factors, including efficiency (highly rated by employer participants), flexibility, cost considerations, and location convenience. About 20% of charging parties reported that they had reservations about being in the same physical location as their employer, and virtual mediation was appealing because they could participate from a “safe space.” The vast majority of employers and charging parties indicated the online mediation process was fair in terms of the procedures used as well as providing an overall impression of fairness.

With respect to the perceptions of the mediators conducting these settlement conferences, virtual mediation is clearly preferred over in-person mediation by mediators, regardless of whether the responding mediator was an EEOC staff mediator, a contract mediator, or a pro bono mediator. The mediators who participated in the study reported, for the most part, that settlement rates were similar between in-person and virtual mediation and, in fact, independent EEOC data corroborates this—showing 71.9% settlement rate in Fiscal Year 2019 (when all mediations were in person) and 70.9% settlement rate in Fiscal Year 2021 (when all mediations were virtual).

The main benefit of virtual mediation observed by mediators was increased flexibility. Mediators reported that through the virtual mediation platform, parties were able to engage in increased caucusing and sharing of key documentary evidence with the mediator and the other side, and experienced less time pressure than typical of traditional, in-person mediation. Mediators also observed a positive impact from the physical separation of the parties and suggested that each party’s ability to choose the location from where they participated in mediation leveled a perceived power imbalance between employer and employee and resulted in a more comfortable and relaxed mediation process. Additionally, the real-time capability to invite other key decision-makers—like insurance adjusters or company executives—to the mediation added flexibility and maintained settlement momentum. Notably, the study revealed very little evidence of technological issues interfering with mediation, as mediators seldom reported that technology problems had any detrimental impact on the overall quality of the mediation or its outcome. Consequently, employers and carriers should give virtual mediation serious consideration as an early resolution strategy for administrative charges.

If you have any questions about how this affects your business, please contact,

Allegra A. Sinclair

Kristin Klein Wheaton

Caroline J. Berdzik

Or another member of our Employment and Labor team.