Alternative Dispute Resolution: Mediation
During the informal stage of the EEO complaint process, your EEO Counselor will ask both you and your employer if you would like to pursue a possible resolution before warranting the need for a full investigation. Mediation is the most common method used to resolve disputes since it allows you and your employer to informally talk about your concerns and negotiate a resolution. The decision to mediate is completely voluntary, and if either party declines a mediation, the charge will be forwarded to an investigator.
If you and your employer agree to mediation, a trained mediator (note: not your EEO Counselor) will facilitate communication between the parties to resolve the dispute. It’s important to point out that mediators don't decide who is right or wrong, they simply offer ways to solve problems and disagreements. Mediation is typically a 3-4 hour long process that includes you, your attorney, representatives from your company or agency, and the mediator.
I highly recommend mediation for employees that wish to remain working for their employer. The outcomes of mediation can be very promising, especially if the outcomes lead to changes in your working conditions that will drastically improve your well-being, such as telework/remote work, or a different office locality, project, teams, or supervisors. You can even negotiate out-of-the-box remedies, such as several weeks of paid administrative leave for mental health recovery.
If a resolution is reached, a settlement agreement will be drafted to state the terms of the resolution, as well as the specific responsibilities or actions of each party. Companies and agencies will often also request that you sign a non-disclosure/confidentiality agreement. It is critical to not sign any form of non-disclosure/confidentiality agreement (NDA) at any time. Keep in mind that NDAs are a means to prohibit targets of sexual harassment/assault from discussing their experiences. This not only prevents victims from finding the support of others who share their same experience, it also inhibits them from raising awareness to prevent future harassment/assault. Remember, NDAs greatly contributed to the perpetuation of sexual harassment and assault by Harvey Weinstien, Larry Nassar, Bill Cosby, Jeffery Epstein, and R. Kelly.
My own mediation was stressful, but also very informative. Through teleconference, the mediator asked me to describe my experiences of sexual harassment and retaliation. In all honesty, this was difficult at moments, but it was also liberating to finally air my grievances face-to-face with the agency. After I finished, the agency was given a chance to speak. The mediator then ended the call to begin the negotiating phase of the mediation. My attorney and I were in contact with the mediator for the next 2 hours, going back and forth on negotiations with the agency. I am extremely grateful that my attorney was present during this as he was able to articulate my concerns during very critical points of the mediation.
I can’t provide the specific details of the remedies that the agency offered during my mediation negotiations, but some of them were very tempting. I ultimately decided to decline them, however, because they all failed to actually address the sexual harassment and retaliation occurring in my workplace. I knew that, by sweeping my concerns under the rug, the agency would continue to condone this behavior. And at the end of the day, I felt that I had put in too much time and effort to settle for any option that didn’t address the harassment head on.
Because a resolution wasn’t reached during my mediation, I continued on to the formal stage of the EEO complaint process by filing my written complaint and statement of claims.
If you are experiencing, sexual harassment, retaliation, or any other form of workplace discrimination, feel free to reach out to me at hello@kendallsimon.com for support and guidance.
***Disclaimer: These are merely my recommendations based on my personal experience. I am not legally responsible for any decisions made based on the information provided.***