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The Equal Employment Opportunity Commission (EEOC) initiated a mediation program in 1999 to allow charging parties and respondents to arrive at creative resolutions of employment disputes outside the formal strictures of investigation, conciliation, and litigation.  The principal advantage of mediation over traditional methods of dispute resolution is the savings it affords the parties in time and money.

Advantages

• Voluntary participation-EEOC mediation is voluntary, and will only proceed if both charging party and respondent consent. Either party may exit the process at any time. Settlement discussions are free of coercion.
• Trained mediators-The agency uses both internal staff mediators and outside paid and voluntary mediators. Both internal and outside mediators are experienced in employment law and trained in mediation techniques. Many outside mediators are former judges or employment law practitioners.
• Mediation held in confidence-Mediators and participants are instructed to maintain confidence in the proceedings, including the details of settlement discussions. Mediation sessions are not recorded or transcribed, and any notes taken by the mediator are destroyed after the session. Employers do not concede liability in mediated settlement agreements.
• Prompt attention-Mediation conferences are usually scheduled within two months of the parties' having consented to the process. Such consent is sought shortly after the charge is filed. In contrast, most agency investigations have hardly begun within two months of the filing of a charge.
• Investigation not impacted-If mediation fails, investigators who handle the file thereafter will not have access to factual information disclosed by either party in the mediation session. Likewise, no information regarding settlement demands or offers will be disclosed to the investigator.
• Flexible solutions-It is the mediator's goal to arrive at a meeting of the minds. Parties to mediation are encouraged to come up with creative solutions outside the bounds of adversarial thinking. Chances are, neither party will be completely satisfied with all the terms of a successful mediation, but each knows that it had a say in the outcome.
• Agreements enforced-In the event of a breach of a mediated settlement agreement, the aggrieved party is encouraged to bring the breach to the Commission's attention. The Commission is authorized to enforce the agreement.

Disadvantages 

• Showing your hand-An employer who agrees to mediate may feel that in doing so it will appear to be making a concession of liability. In fact, the employer's primary motivation to mediate may be saving time and money on what it regards as a spurious charge. A skilled mediator will make a point of dispelling the notion of liability when he or she commences the mediation conference, emphasizing that the parties are interested in saving time and money and in moving on.
• A waste of time-It takes time to prepare for and participate in a mediation conference, and a party does not know in advance how reasonable or unreasonable the other party will be. Again, a skilled mediator will endeavor to temper the demands of both parties, and if those efforts fail, will declare an impasse. Most EEOC mediation conferences are concluded in half a day.
• Setting bad precedent-Although the mediation is confidential, coworkers have a way of finding out that a conference was held and/or that a settlement was reached. Some employers may not want to send a message to employees that the employer will settle what it considers to be spurious claims. Keep in mind, however, that 95% of employment claims settle at some point before trial.

Despite these considerations, the advantages of mediation outweigh the disadvantages.  If the mediation is successful, the employer has avoided a costly and unpredictable investigation.  If it is not, the employer has lost relatively few hours and has not prejudiced the investigation that follows.

According to "An Evaluation of the Equal Employment Opportunity Commission Mediation Program," available at www.eeoc.gov, almost 87% of employers who participated in the agency's mediation program were satisfied with the fairness of their mediation conference.  Two-thirds were satisfied with the outcome of the session.