Fox Rothschild Responds To My Post About EEOC Mediators

In all fairness, I wanted to provide an update. I posted Friday that Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs. The piece was about a claim made in a survey that EEOC mediators are biased against employers. Fox Rothschild posted the survey in their blog, then posted a guest piece by the author of the survey. I strongly disagreed with this assertion of bias, and explained why.

I then let Richard Cohen, the blog's author, know that I had posted the piece so he could respond. Here's what he said:

Good post. But neither my blog or firm have taken or take that position, or claim to take that position. The blog simply reported, I think faithfully, comments from both sides, without comment from me and without my taking sides. Generally speaking, that's my blog's general tenor.

And Ms. Archer has no association with my firm.

Although your post is likely good PR for us, nonetheless it is inaccurate.

Rich Cohen

In additional communications, Mr. Cohen advised that neither his firm nor he have taken a position on the topic, and that his blog expresses his views, not the firms. I’m delighted to hear that it is not Fox Rothschild’s or Mr. Cohen's position that EEOC mediators are unfairly biased toward employees. I certainly got a different impression from reading their blog posts. It's still concerning to hear these claims made about EEOC mediation, which I think is a worthwhile process.

If a well-respected firm like Fox Rothschild publicizes a study in their blog (and it is in the firm's official blog with Mr. Cohen listed as the author) that claims bias without questioning that study, or stating that their experiences with EEOC mediation were different, I think agreement with the study was implied. If the firm then posts guest a blog reasserting that bias without any positive comment about Fox Rothschild's or Mr. Cohen's own EEOC mediation experiences, I think readers may reasonably assume they agree with their guest's post.

I wonder if their clients and other employers now think that there really is a bias against employers in EEOC mediation. I wonder if employers will hesitate to agree to utilize EEOC's free process, despite the fact that a judge will order them to engage in mediation they'll have to pay for if they are sued. Will Fox Rothschild or Mr. Cohen take an official position as to whether they believe EEOC mediations are biased against employers? Will other management-side firms and lawyers stand up for EEOC?

Stay tuned.

Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs

The law firm Fox Rothschild, LLP has posted a series of blog posts where they complain bitterly about EEOC mediators. They claim the mediators are unfair because they have the nerve (the noive!) to tell employers that EEOC could enter a cause finding in their case. The whining began with a survey by Merrily Archer where she asked management-side folks who participated in EEOC mediations whether or not mediators mentioned "cause" findings as a possibility. She found that they did so in 73.7% of cases. In 70% of cases, mediators mentioned to employers that EEOC could possibly bring a suit against the employer if they found cause.

Other lawyers weighed in and said that EEOC mediations are no different from other employment mediations, in that mediators do mention possible "cause" findings and other worst-case scenarios when trying to bring about settlements. But Fox Rothschild is now claiming that EEOC mediators should not do what every other mediator does.

They make three arguments for why EEOC mediators should be banned from mentioning the dread but rare "cause" finding:

1. Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion
2. Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its "Efficacy" by Its Employer Collections
3. Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers 

So let me get this straight. Other mediators mention worst-case scenarios and that's okay. But EEOC mediators should paint a rosy pro-employer picture because they work for EEOC? All this whining fails to mention that EEOC mediators do not communicate with the investigators. They aren't allowed to discuss what happened at mediation. They can't have any impact on the enforcement decision one way or the other. And as to "efficacy," I'm willing to be that what they measure are the number of settlements, not the amount. As to their not being lawyers, mediators aren't supposed to give legal advice or make legal pronouncements. They don't have to be lawyers. Many EEOC mediators were investigators and know better than anyone how the system works.

What is completely missing from all this management-side moaning and groaning is any input from the employee side about what EEOC mediators say when meeting with employees. Mediators are supposed to test both sides with strong questions and doomsday scenarios. EEOC mediators point out to my clients that they could lose their case, that most EEOC cases end up with an "unable to determine" finding (some have even said a "no-cause" finding, even though those no longer exist), that litigation is long and drawn-out and expensive, and that sometimes a losing employee could end up paying fees and costs to the employer. It's the lawyer's job, not the mediator's, to discuss how likely each of these scenarios is with the client and whether settlement is a viable option.

I'd also like to point out my pet peeve from the employee side with EEOC mediators: employers always get the best room. At least here in Miami, EEOC has large, comfy conference rooms with candy and water on the tables, sometimes coffee, where the mediation starts. In every single situation I've encountered, after the initial openings and discussions, when it breaks into caucus, the employee is moved to a different room. That room used to be a tiny and freezing room with a tiny table and no refreshments. Now that they've moved to a different building, employees and their counsel don't even get a table to work on. There's a tiny room with a sofa and some chairs and side tables, and no place to put a laptop or spread out case files.

Does this send a message to employers that they are in disfavor? I think not. I think it sends a terrible message to employees that they are second-class citizens in EEOC mediation, whether it's true or not. I think EEOC mediators should alternate between moving the employer and the employee to the tiny room so it's fair. In a couple of cases, I've insisted upon it and been met with resistance, shock and surprise that I dared shake the status quo.

I'm a huge fan of the EEOC mediation process and EEOC mediators. In Miami at least, they're some of the best mediators I've encountered. That doesn't mean I think they are biased in favor of employees. If they were, they couldn't settle cases. A good mediator tests and pushes both sides, and that's what EEOC mediators do. It would be a travesty if EEOC mediators bowed to management-side pressures by not testing and pushing employers by telling them the worst-case possibilities that maybe their lawyers don't want them to hear.

I challenge Fox Rothschild to survey employee-side firms to find out what worst-case scenarios EEOC mediators are sharing with employees. They won't do it, because it will completely repudiate their claim that EEOC mediators are somehow unfair to employers.

So quit your whining, Fox Rothschild, and enjoy your comfortable large conference room and refreshments while your opponent is stuffed into a tiny room down the hall.

Marathon Mediations Aren’t Good For Employees

I’m a mediator, and I’ve been one pretty much since mediation has existed. When I was trained, in the olden times, mediations were scheduled in 2 – 3 hour sessions. If they lasted longer and the parties were making progress, the mediation was reconvened another day, when the parties were fresh. I’ve found that most cases, if they’re going to settle, can settle in 2 – 3 hours. Yet I find that mediations these day seem to be expected to last 6 – 8 hours or more. So what’s happened to those reasonable-sized mediations?

I actually recently had a mediator say to me recently that her mediations frequently go until midnight. She was quite shocked when I responded that this one would not do so, and that, in fact, I had an appointment in my office at 4:00.

I started wondering. Am I just a curmudgeon?

Then I took my mother car shopping. It was while cooling our heels for hours waiting for the contract to show up that I realized why I absolutely despise the new, trendy marathon mediations. It’s because the employee is just like a car buyer. The employee is either alone or with their one lawyer. The other side is there with a lawyer, an HR rep, maybe a couple other folks. Management is the car dealer. The mediator in the marathon is the salesman, trying to get the sale done. The marathon sale is a pretty nasty sales technique, used by car dealers for years successfully, and for one reason – to get the upper hand with the consumer.

Here’s why I am going to continue to object to mediations that go beyond 3 – 4 hours:

Exhaustion: Just like the car buyer, the marathon process wears the employee down. They get careless, restless. Ready to take anything just to get out of there. They maybe have one lawyer, who is also tired. Management has an entire firm, just waiting by the phone and their computers. Possibly an insurance adjuster too. They can have multiple eyes on draft agreements to catch errors, even at midnight. Employees and their lawyers don’t have that kind of backup. There is absolutely nothing beneficial to employees that can happen after 6 or 8 or 12 hours of mediation in one day. It’s best to break it up into smaller sessions so everyone is refreshed and thinking clearly. I even wonder – is a mediator who allows a session to go that long meeting their ethical obligations to the employee? Don’t they have a duty to make sure the parties are capable of clear thinking?

Abuse: Marathon mediations have an incredible ability to abuse the employee through time wasted, trickling out one by one all the reasons the employee sucked and deserved to be fired. They become shell-shocked, even depressed. They’re already tired. The doubt creeps in.

Expense: Most mediations are borne half by the employee and half by the employer. At several hundred dollars an hour, the employer can make an already-poor former employee shell out dollars they can’t afford with no intention of ever offering anything. If there’s no offer after an hour, something is wrong in my opinion.

Here’s how the marathon mediation starts. The employee gives an opening that lasts about five minutes. The mediator asks lots of questions. Lots. Of. Questions. This, despite getting a detailed position statement ahead of time. Then the employer goes, and speaks for half an hour. More questions.

Then comes the caucus. The mediator spends an hour with the employer side, then comes back without an offer. He wants to go over some facts instead. He’d like to spend an hour or so with us, then go back to the employer. That’s when I’m certain the mediation is going to be a marathon.

Here’s how I stop it from being a marathon. I ask if there’s an offer on the table, and he looks at me funny. I say that, unless I have an offer over a specific amount in the next 30 minutes, he can call it an impasse. The mediator acts like I’m being the bad guy. But because I’m not exhausted, I’m not easily swayed. If, after an hour and a half, there’s no offer (and by an offer I don’t mean $500 or even $5000), it’s time to go. Any mediator worth their salt can get an offer from management in an hour and a half.

I place a firm time limit on the mediation. In my case, I have a pretty immovable time deadline to pick the kids up from school. But it can be anything – a meeting scheduled afterwards, dinner plans, anything that keeps you from being persuaded to lapse into the marathon. Sure, if we’re almost settled and I just need a few minutes, I can usually make arrangements to stay a bit later, but if we aren’t close, then at the deadline we need to impasse or continue to another time.

Another thing I like to do is try to start negotiating even before the mediation. I like to see how close we can get before mediation so we’re not starting from scratch. Then we can tell the mediator where we left off. If we impassed before mediation, the ball is almost always in management’s court, since I always, always make a counter to any offer I’ve received. That way, the mediator can start with management. I don’t understand why some management-side attorneys don’t want to talk before the mediation when they aren’t paying someone by the hour to talk to me. But most will gladly talk beforehand.

From now on, I’m going to tell the mediator right up front my time limit for the mediation. I’m going to tell them why. I’ll even tell them about car dealer tactics if I have to. If we can’t resolve it in that amount of time, then we can break and reconvene another day. Just like in the olden times.

So, do you agree with me, employee-side lawyers? Are marathon mediations bad for your clients? What about management-side? Do they actually benefit anyone but the lawyers and mediator? Are there any mediators out there who still limit mediations to no more than 3 – 4 hour sessions? If you think I’m wrong, I’d love to hear that too.