Are You Using Mediation for Employment Litigation Risk Management?

Mediation as a Litigation Risk Management Tool.

My friend and employment law guru Eric B. Meyer of Fisher Broyles inspired me to write this post.

His 2/24/20 email update is titled:“I have a copy of the EEOC’s ‘top secret, classified, confidential’* priorities for 2020. Want to see it?”

Eric is a master of the provocative title. I had little doubt that he really had classified information to share. I had no doubt that his information would be worth my time to read. I commend the whole thing to you.

His point that I most want to stress is the one extolling the virtues of the Equal Employment Opportunity Commission’s employment claim mediation program.

From the post:

“I am a HUGE fan of the EEOC’s mediation program. As part of my employment law practice, I serve as a paid private mediator. Additionally, I am a volunteer mediator in the EEOC’s mediation.

Perhaps I’m a bit biased, but what’s not to like? Mediation is free, you don’t have to file a position statement unless the parties don’t settle, and the mediation success rate is north of 70%.

The EEOC offers most employers that receive a charge of discrimination from the EEOC the opportunity to mediate. I suggest that you strongly consider that option, especially if the Charging Party has a lawyer. Because likely alternative is an EEOC investigation followed by litigation. And, even if you win, you lose because you have to pay someone like me to defend you.

And if you have employment practices liability insurance, mediation is practically a no brainer. You’re mitigating risk and that’s music to the carrier’s ears. The worst-case scenario is that you spend a day at the EEOC and don’t settle. But, even then, you’ll learn more about the Charging Party’s claims than you could have by reading the face of the charge.”


Mediation is a great tool for managing employment litigation risk.

Employee separation and release agreements are another great tool, about which I will say more in a future post.

Michael Oswald

Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.

© 2020 Michael S. Oswald

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