Mediation often occurs at the beginning of the EEOC process, before a lawsuit has been filed or discovery has been conducted, creating unique challenges for employers. Here are my top 5 tips for a successful EEOC mediation.
1. Get the information you need to make a business decision. How strong are the employee’s facts? How likely is the case to be disposed of on summary judgment? What are the likely costs of defense? What are the potential damages that could be assessed against you if the employee wins a lawsuit against you? Employers are often offended by what they perceive as an employee’s baseless allegations; however, letting emotions alone dictate your course of action often leads to significantly higher legal fees. Get the information you need to make a business decision.
2. Play to your strengths. Investigate the employee’s alleged facts. Talk to the employees involved. Find out what they are going to say, and craft your defenses based on the facts. Never allege a defense that is not supported by the facts. That plays to your weaknesses and could lead to additional claims brought against you. Also remember that changing your story later on can be used against you as evidence of discrimination. So know your facts, play to your strengths, and be consistent.
3. Anticipate the employee’s arguments and be prepared to address them. Take a minute to stand in the employee’s shoes. Anticipate how the employee is going to tell her story. How will you counter it? Does the story make sense? Is it sympathetic but does not rise to the level of a colorable claim? Has the employee misunderstood the facts? Or, even if the employee’s allegations are true, are there legal defenses that, if proven, will prevent her from being able to recover damages? Anticipate the employee’s arguments and be prepared to address them.
4. Bring authority to back up your position. You and your lawyer’s gut sense of how strong the employee’s case is is important. But arguments alone are not likely to convince the employee of the weaknesses of her case. Provide authority to support your position. Don’t believe the employee has a colorable claim? Present caselaw to support your position. Believe the employee has misunderstood the facts? Produce a statement from a key witness or other data to prove it. Believe the employee is overvaluing her case? Bring the verdicts to show it.
5. Stick to your guns. If you have done your homework, then you have investigated the facts and know the strengths and weaknesses of your case. You have crafted your defenses based on the facts, and you have brought authority to support your defenses. You have also analyzed the possibilities of a potential adverse judgment against you and the costs of defense. You should therefore know your limits. Stick to them. Find out early on if the claimant is even in the same ballpark. And then negotiate to win!