EEOC mediation is a voluntary, confidential, and completely free alternative dispute resolution (ADR) process offered by the U.S. Equal Employment Opportunity Commission to resolve employment discrimination charges without a formal investigation, hearing, or trial. It brings the charging party (employee) and the respondent (employer) together with a trained, neutral mediator whose role is to facilitate communication and help both sides reach a mutually acceptable resolution.
Many people confuse EEOC mediation with the EEOC investigation process. They are fundamentally different procedures with different goals, structures, and outcomes.
| Feature | Mediation | Investigation |
|---|---|---|
| Purpose | Facilitate voluntary settlement | Determine if discrimination occurred |
| Who decides? | The parties themselves | EEOC investigator |
| Duration | Average 3-4 hours | Average 10+ months |
| Confidential? | Yes, completely | No -- findings become part of the record |
| Binding? | Only if both parties agree | EEOC issues a determination |
| Cost | Free to both parties | Free, but costly in time and resources |
| Legal representation | Optional (not required) | Advisable but not required |
| Outcome control | Full control by both parties | Determined by EEOC |
The mediator is not a judge, investigator, or decision-maker. The mediator does not determine who is right or wrong, does not assess the merits of the charge, and does not impose a solution. The mediator's sole role is to help the parties communicate effectively and explore possible resolutions. Either party can withdraw from mediation at any time without penalty, and nothing said during mediation can be used later in the investigation or in court.
Confidentiality is one of the cornerstones of EEOC mediation. The EEOC enforces strict confidentiality rules to encourage candid, open discussion:
- Nothing said during mediation is shared with EEOC investigators. If mediation fails and the charge proceeds to investigation, the investigator receives no information about what was discussed, offered, or proposed during mediation.
- No notes or records from mediation are placed in the charge file. The mediator's notes are destroyed after the session.
- Statements made during mediation cannot be used in any subsequent proceeding. This includes administrative hearings, trials, and appeals.
- The mediator cannot be called as a witness. Federal law protects the mediator from being compelled to testify about anything that occurred during the session.
- Both parties sign a confidentiality agreement before mediation begins. This creates a contractual obligation in addition to the procedural protections.
The confidentiality protections mean you can speak freely during mediation without fear that your words will be used against you. You can acknowledge weaknesses in your case, make concessions during negotiation, and explore creative solutions -- all without risk. This is why mediation often succeeds where adversarial processes fail: both sides can have honest conversations that would be impossible in a courtroom.
The EEOC does not offer mediation in every case. The agency evaluates each charge to determine whether it is suitable for mediation based on several factors. Understanding when and why mediation is offered helps you assess whether it is the right path for your situation.
When a charge of discrimination is filed, the EEOC screens it for mediation eligibility. The EEOC uses a "priority charge handling" system that categorizes charges into three tiers:
Category A -- Priority Charges
Cases involving significant legal issues, patterns or practices of discrimination, or cases the EEOC may want to litigate on its own. These cases may still be offered mediation, but the EEOC has a strategic interest in the outcome.
Category B -- Cases Requiring Further Investigation
Cases where there is initial evidence to suggest discrimination may have occurred but further investigation is needed. These are commonly offered mediation because resolution saves EEOC investigative resources.
Category C -- Dismissal Candidates
Cases where the initial review suggests the charge lacks merit. These are sometimes offered mediation as well, because even a weak charge may produce a settlement that benefits both parties (the employer avoids ongoing administrative burden, and the employee receives some resolution).
Mediation is always voluntary for both sides. Even if the EEOC identifies a case as suitable for mediation, both the charging party and the respondent must agree to participate. If either party declines, the charge proceeds through the normal investigation process. There is no penalty for declining mediation.
The EEOC can offer mediation at various stages of the charge process:
- At intake: Many charges are offered mediation immediately after filing, before any investigation begins. This is the most common timing and provides the fastest resolution path.
- After initial review: If the EEOC determines after preliminary review that mediation would be productive, it may offer mediation even after the charge has been assigned to an investigator.
- During investigation: In some cases, the EEOC may offer mediation mid-investigation if it believes the parties may be receptive. This can happen when new information comes to light that changes the dynamics.
- After a determination: In rare cases, mediation-like conciliation occurs after the EEOC has issued a "cause" finding. This is technically conciliation rather than mediation, but it operates on similar principles.
Cases Not Typically Selected for Mediation
The EEOC generally does not offer mediation when:
- The charge involves systemic discrimination affecting a large class of employees
- One party has a history of refusing to participate in good faith
- The case involves allegations of serious criminal conduct (e.g., sexual assault)
- There are significant power imbalances that would make the process unfair
- The EEOC intends to use the case to establish legal precedent
EEOC mediation offers substantial advantages over both the traditional investigation process and litigation. Understanding these benefits helps you make an informed decision about whether to participate.
| Factor | EEOC Mediation | EEOC Investigation | Federal Litigation |
|---|---|---|---|
| Time to resolution | 1 day (avg 3-4 hours) | 10-18 months | 2-5 years |
| Cost to employee | $0 | $0 (direct), significant time | $10,000-$100,000+ |
| Cost to employer | $0 (mediation fee) | $5,000-$20,000 (staff time) | $50,000-$500,000+ |
| Outcome certainty | Both parties control outcome | EEOC decides | Judge/jury decides |
| Confidential | Yes | Partially | Generally public record |
| Resolution rate | ~75% | Varies widely | ~95% settle pre-trial |
The EEOC's mediation program has an impressive track record:
- Overall resolution rate: Approximately 75% of mediations result in a settlement agreement. This is significantly higher than the resolution rate through investigation alone.
- Average monetary benefit: $15,000 to $25,000 is the typical range for individual charge mediations, though amounts vary significantly based on the nature of the charge, the strength of the evidence, and the size of the employer.
- Participant satisfaction: Over 90% of participants (both charging parties and employers) report satisfaction with the mediation process, even when no agreement is reached.
- Time savings: Cases resolved through mediation are typically resolved within 85 days of the charge being filed, compared to the average investigation timeline of 10+ months.
Creative Remedies Available in Mediation
One of the most significant advantages of mediation is the ability to craft creative remedies that a court or the EEOC cannot order:
- Neutral or positive reference letters -- Agreed-upon language for future employment references
- Job reinstatement with specific conditions and protections
- Transfer to a different department or location
- Agreed-upon resignation terms with a severance package
- Training programs for supervisors or the entire workplace
- Policy changes within the organization
- Mentoring or career development opportunities
- Extended health insurance coverage (COBRA payments)
- Outplacement services or career counseling
- Flexible payment schedules for monetary settlements
A 75% resolution rate in mediation compares very favorably to other dispute resolution contexts. Many EEOC charges that go through investigation result in "no cause" findings, meaning the employee gets nothing. And litigation is expensive, uncertain, and emotionally draining. Mediation offers a fast, free, and private way to reach a concrete result -- which is why both sides typically leave satisfied, even when the outcome requires compromise.
For employees who are still employed by the company (or who may want to maintain a professional relationship), mediation offers a significantly less adversarial path than investigation or litigation:
- Reduced hostility: The mediation process is designed to promote communication, not confrontation. Both sides speak to a mediator rather than cross-examining each other.
- Mutual understanding: The process often helps both sides understand the other's perspective, which can lead to genuine workplace improvements.
- Discreet resolution: Because mediation is confidential, coworkers, customers, and the public do not learn about the charge or its resolution.
- No public record: Unlike litigation, mediation results do not appear in court databases, news reports, or public records searches. This protects both the employee's and employer's reputation.
EEOC mediation follows a structured but flexible process. Understanding each phase helps you prepare effectively and know what to expect on the day of your session.
Do not make threats, interrupt the other party during opening statements, bring unauthorized attendees, secretly record the session, or refuse to engage in good faith. While you can always walk away, being obstructive damages your credibility and wastes an opportunity. Also, do not agree to terms you do not fully understand -- ask the mediator to explain anything that is unclear before signing.
If you have filed multiple EEOC charges against the same employer -- whether for ongoing discrimination, retaliation after an initial complaint, or related incidents across time -- consolidating those cases for a single mediation session can significantly strengthen your position and streamline the resolution process.
Consolidation is most effective when your multiple charges share common elements. You should consider requesting consolidation when:
- Same employer: All charges are filed against the same company or related entities (parent company and subsidiary, for example).
- Related facts: The charges arise from the same course of conduct, the same supervisors or decision-makers, or the same discriminatory pattern.
- Sequential retaliation: You filed an initial charge, and the employer retaliated, leading to additional charges. This creates a narrative arc that is more powerful when presented together.
- Common witnesses: The same individuals would be relevant to multiple charges.
- Overlapping time periods: The discriminatory conduct described in the charges occurred during overlapping or sequential time frames.
How to Request Consolidation
There is no formal EEOC form for requesting consolidation. You should:
- Contact the EEOC mediator or ADR coordinator assigned to your cases
- Identify all charge numbers and explain their relationship
- Submit a written request (letter or email) explaining why the cases are related and why joint mediation would be more efficient
- Emphasize the common facts, witnesses, and timeline
- Note that consolidation saves EEOC resources (mediator time, scheduling, room usage)
The EEOC is resource-constrained. When you request consolidation, emphasize how it saves the agency time and resources. Instead of saying "I want to combine my cases for more leverage," say "Mediating these related charges together would require only one session instead of five, saving significant mediator and scheduling resources while allowing for a comprehensive resolution."
The strategic advantage of multi-case mediation lies in the ability to present a comprehensive narrative rather than isolated incidents. Here is how to structure your presentation:
Build a Timeline
Create a chronological timeline that shows the progression of discriminatory conduct across all charges. This visual representation demonstrates a pattern of behavior rather than isolated incidents, which is far more compelling to both the mediator and the employer.
Connect the Dots
Explicitly identify the common threads:
- Same decision-makers involved across charges
- Escalating severity of discriminatory conduct
- Retaliation following protected activity (filing complaints, requesting accommodations)
- Company's failure to address complaints or take corrective action
- Pattern of pretextual justifications
Advantages of Consolidation
- Increased leverage: Five related charges are much harder for an employer to dismiss as a "misunderstanding" or "personality conflict" than a single charge. The pattern tells a story.
- Comprehensive settlement: A global resolution addressing all charges avoids the inefficiency and uncertainty of multiple separate mediations or investigations.
- Higher settlement value: The total exposure to the employer across multiple charges is significantly greater than any single charge, which naturally supports a higher settlement amount.
- Efficiency: One mediation session, one negotiation, one settlement agreement, one resolution.
- Narrative power: A pattern of discrimination is more persuasive than an isolated incident, both in mediation and if the case ultimately proceeds to litigation.
When calculating your settlement target for multi-case mediation, consider the aggregate damages across all charges, not just each charge individually. Include total lost wages, aggregate emotional distress across the pattern, the cumulative cost of the employer's investigation exposure, and the multiplied litigation risk the employer faces if all cases proceed separately.
Preparation is the single most important factor in mediation success. The parties who walk into mediation with a clear understanding of their case, their numbers, and their strategy consistently achieve better outcomes.
Assess Your Strengths
Before mediation, honestly evaluate the strongest elements of your case. Consider:
- Direct evidence: Do you have written communications (emails, texts, memos) that directly reference your protected characteristic or show discriminatory intent?
- Witness testimony: Are there coworkers or other individuals who witnessed discriminatory conduct and would be willing to testify?
- Pattern evidence: Can you show that similarly situated employees outside your protected class were treated more favorably?
- Timing evidence: Does the timeline of adverse actions correspond closely to protected activity (e.g., you were terminated two weeks after filing an internal complaint)?
- Documentation gaps: Did the employer fail to document legitimate performance concerns, suggesting that their stated justification is pretextual?
Acknowledge Your Weaknesses
Equally important is honestly confronting the weak points in your case. The employer will raise these during mediation, and you need to be prepared:
- Were there legitimate performance issues documented before the adverse action?
- Were other employees (including those in your protected class) treated the same way?
- Is there a plausible non-discriminatory explanation for the employer's actions?
- Did you follow internal complaint procedures?
- Are there gaps in your evidence or timeline?
One of the most common mistakes in mediation is walking in with unrealistic expectations based on an overly optimistic assessment of your case. The employer's attorney has likely assessed the case too, and if your demands are wildly out of proportion to the evidence, the employer will walk away. Be realistic about what a jury might award if the case went to trial, and factor in the significant costs, risks, and delays of litigation.
Knowing your actual damages is critical for setting a realistic settlement range. Calculate each category:
Economic Damages (Back Pay)
- Lost wages: Calculate the total wages you lost from the date of the adverse action (termination, demotion, etc.) to the present. Include base salary, overtime, bonuses, commissions, and any regular compensation.
- Lost benefits: Health insurance premiums you had to pay (COBRA or marketplace), 401(k) matching contributions lost, stock options or equity vesting that was interrupted, paid time off accrued but not paid.
- Job search costs: Reasonable expenses incurred searching for new employment.
- Mitigation: Subtract any income earned from new employment during this period. You have a legal duty to mitigate damages by seeking comparable employment.
Front Pay (Future Lost Earnings)
If you have not yet found comparable employment, or if your new position pays significantly less, you may have a front pay claim for the difference going forward for a reasonable period.
Emotional Distress Damages
Compensatory damages for emotional distress, mental anguish, humiliation, and loss of enjoyment of life. These are harder to quantify but are a real component of your damages. Documentation from a therapist, counselor, or physician strengthens this claim.
Punitive Damages (In Litigation)
While punitive damages are technically only available in litigation (not mediation), the possibility of punitive damages creates leverage in mediation. If the employer's conduct was particularly egregious or reckless, the employer knows that a jury could award significant punitive damages -- which creates incentive to settle.
Title VII and the ADA impose caps on combined compensatory and punitive damages based on employer size: $50,000 (15-100 employees), $100,000 (101-200 employees), $200,000 (201-500 employees), $300,000 (501+ employees). These caps do not apply to back pay or front pay. Knowing the applicable cap for your employer helps you set a realistic settlement target.
Before mediation, establish three numbers:
Determine your minimum acceptable amount before you walk into the room, while you are thinking clearly and rationally. During mediation, the pressure to settle, fatigue, and emotional dynamics can push you to accept less than you should. Having a pre-set walk-away number protects you from making a decision you will regret.
Documents to Bring
- Copy of your EEOC charge(s)
- Relevant emails, texts, and written communications
- Performance reviews and evaluations
- Pay stubs, W-2s, or compensation records
- Any written complaints you filed internally
- Medical or therapy records (if claiming emotional distress)
- Your written opening statement and settlement range
- A damages calculation worksheet
- Notes on what non-monetary terms matter to you
What to Wear
Business casual is appropriate. You want to project professionalism and seriousness without being intimidating. Avoid anything too casual (jeans, sneakers) or too formal (a full suit may feel adversarial). Think "job interview" attire.
Emotional Preparation
Mediation can be emotionally intense. You will be in the same building as the person or organization you believe discriminated against you. Prepare for this:
- Practice describing the events calmly and factually
- Know that it is okay to take breaks -- ask the mediator
- Bring water, snacks, and any medication you may need
- Consider having a supportive friend or family member available by phone (they cannot attend, but you can call them during a break)
- Remember that anger is natural but undermines your negotiating position
Attorney Representation
You are not required to have an attorney at EEOC mediation, but it is worth considering. An experienced employment attorney can help you evaluate your case realistically, prepare your opening statement, conduct the negotiation, and review the settlement agreement before you sign. Many employment attorneys offer free consultations or work on contingency for EEOC matters.
Effective negotiation in EEOC mediation requires strategy, patience, and emotional discipline. Here are proven approaches that maximize your chances of a favorable outcome.
The Anchoring Effect
Research consistently shows that the first number put on the table has a disproportionate influence on the final outcome. This is called the "anchoring effect." The party that makes the first offer sets the range of negotiation.
High Anchor vs. Realistic Opening
There are two schools of thought:
- High anchor approach: Start with a number significantly higher than your realistic target (often 2-3x). This gives you room to make concessions while still reaching your target. The risk: if the number is absurdly high, the employer may disengage, viewing you as unreasonable.
- Realistic opening approach: Start with a number that is on the high end of reasonable, supported by your damages calculation. This signals seriousness and good faith. The risk: you may leave money on the table if the employer was prepared to pay more.
Recommendation: For most EEOC mediations, a high but defensible anchor works best. Your opening should be higher than what you expect to receive, but you should be able to explain how you arrived at the number if asked. "I calculated $X in back pay, $Y in emotional distress, $Z in future lost earnings, and that is how I arrived at my number" is much more effective than an arbitrary figure.
The Decreasing Concession Pattern
Make each concession smaller than the last. This signals that you are approaching your bottom line. For example:
- First concession: Drop $10,000 (from $50,000 to $40,000)
- Second concession: Drop $5,000 (from $40,000 to $35,000)
- Third concession: Drop $2,000 (from $35,000 to $33,000)
- Final concession: Drop $500 (from $33,000 to $32,500)
The decreasing pattern communicates that your flexibility is diminishing and you are close to your limit.
Never Concede Without Getting Something
Every concession you make should be paired with a request: "I am willing to come down to $X if the company will also include a neutral reference letter and 6 months of COBRA payments." This prevents unilateral concession-making and ensures both sides are working toward the middle.
The Power of Silence
After making a counteroffer, stop talking. Resist the urge to justify, explain, or soften your position. Silence puts pressure on the other side to respond. The mediator understands this dynamic and will respect your silence.
Non-Monetary Terms as Negotiating Tools
If you are stuck on monetary numbers, consider expanding the pie with non-monetary terms:
- Neutral reference letter: Agreed-upon language for employment verification
- COBRA payments: Employer pays for health insurance continuation
- Non-disparagement: Mutual agreement not to speak negatively about each other
- Record correction: Change the reason for separation in company records
- Outplacement services: Professional career transition support
- Training: Require the employer to conduct anti-discrimination training
- Policy changes: Require the employer to adopt or revise policies
Mediation is inherently emotional. You are discussing events that caused real harm. But effective negotiation requires managing those emotions.
Common Emotional Traps
- Anger at lowball offers: The employer's first offer will almost certainly feel insulting. This is normal and expected. Do not react emotionally -- counter calmly with your supported position.
- Desire for vindication: Mediation will not give you a finding that you were right and the employer was wrong. If public vindication is your primary goal, mediation may not satisfy that need.
- Fatigue-driven settlement: After hours of negotiation, exhaustion can push you to accept a lower amount just to be done. If you feel this happening, ask for a break. Walk around. Call a friend. Eat something. Then reassess.
- Sunk cost fallacy: "We have been here for four hours, I do not want to walk away with nothing." Do not accept a bad deal just because you have invested time in the process.
When to Walk Away
You should seriously consider walking away when:
- The employer's best offer is below your pre-set walk-away number
- The employer is not negotiating in good faith (making trivial concessions, stalling)
- The settlement terms include provisions you cannot accept (unreasonable non-compete, broad release of unrelated claims)
- You feel pressured to decide before you are ready
Remember: walking away from mediation is not defeat. It simply means the charge continues through the normal process. You preserve all your rights.
If mediation is successful, the parties will sign a written settlement agreement on the spot. This is a legally binding contract. Understanding what should be in the agreement -- and what to watch out for -- is essential.
A well-drafted settlement agreement should address all of the following:
Core Financial Terms
- Total settlement amount: Clearly state the total dollar amount the employer will pay.
- Tax allocation: Specify how the settlement is allocated between wages (taxable as income, subject to withholding) and non-wage payments (emotional distress, attorney fees). This has significant tax implications. Use our Settlement Tax Calculator to understand the impact.
- Payment timeline: When the payment will be made (typically within 14-30 days of execution).
- Payment method: Check, direct deposit, or wire transfer. Specify where the payment should be sent.
- Tax forms: Which IRS forms the employer will issue (W-2 for wage allocation, 1099 for non-wage allocation).
Non-Monetary Provisions
- Reference letter: The exact text of the reference the employer will provide when contacted by future employers.
- Record correction: How the separation will be characterized in company records (e.g., "voluntary resignation" rather than "terminated").
- COBRA or health insurance: If the employer will pay COBRA premiums, for how long and in what amount.
- Outplacement services: Details of any career transition support.
Legal Provisions
- Release of claims: What claims you are releasing (should be limited to claims arising from the facts in the charge, not a blanket release of all possible claims).
- Non-admission: Standard language stating the employer does not admit wrongdoing.
- Confidentiality clause: What the parties agree to keep confidential (settlement amount, terms, or the existence of the agreement itself).
- Non-disparagement: Mutual agreement not to make negative statements about each other. Ensure this is mutual -- it should bind the employer and its agents, not just you.
- Enforcement provision: What happens if either party breaches the agreement (e.g., court enforcement, liquidated damages).
- Withdrawal of EEOC charge: The agreement should specify that the charging party will withdraw the pending EEOC charge(s) upon receipt of the settlement payment.
How your settlement is taxed depends on how it is categorized in the agreement. This is one of the most commonly overlooked aspects of settlement negotiations.
| Settlement Component | Tax Treatment | IRS Form |
|---|---|---|
| Back pay (lost wages) | Taxable as ordinary income; employer withholds payroll taxes | W-2 |
| Front pay (future wages) | Taxable as ordinary income; subject to payroll taxes | W-2 |
| Emotional distress (no physical injury) | Taxable as ordinary income; no payroll tax withholding | 1099-MISC |
| Physical injury/sickness | Generally tax-free under IRC 104(a)(2) | None required |
| Attorney fees (paid to your attorney) | May be above-the-line deduction for employment claims | 1099 to attorney |
| Punitive damages | Always taxable as ordinary income | 1099-MISC |
The tax allocation in your settlement agreement is negotiable and can significantly impact your net after-tax recovery. A $30,000 settlement allocated entirely to back pay will net you significantly less than a $30,000 settlement with a portion allocated to emotional distress (different tax treatment) or physical injury (potentially tax-free). Consult a tax professional before agreeing to the allocation.
Confidentiality Clauses
Most settlement agreements include a confidentiality provision. Pay attention to what is covered:
- Narrow confidentiality: Only the settlement amount is confidential. You can discuss the existence of the dispute and its resolution, just not the dollar figure. This is the most common and generally most fair approach.
- Broad confidentiality: The entire existence of the agreement, its terms, and the underlying dispute are confidential. This is more restrictive and may limit your ability to explain a gap in employment or discuss the experience with future employers.
- Exceptions: Ensure the confidentiality clause includes standard exceptions for disclosures to your attorney, accountant, tax advisor, spouse, and as required by law (tax returns, subpoenas, etc.).
Non-Disparagement Provisions
These clauses prohibit the parties from making negative statements about each other. Important considerations:
- Ensure the non-disparagement obligation is mutual -- it should bind the employer, its officers, directors, managers, and HR personnel, not just you.
- Clarify what constitutes "disparagement" -- truthful statements required by law (such as responding to a government investigation) should be explicitly excluded.
- Consider whether the clause covers social media, online reviews, and other digital communications.
Reference Letter Provisions
If a reference letter is part of the agreement, the best practice is to attach the exact text as an exhibit to the settlement agreement. This prevents future disputes about what was agreed. Specify:
- The exact text the employer will provide
- Who at the company will serve as the reference contact
- What information will be disclosed in response to employment verification requests (dates of employment, title, salary -- or just "confirm or deny")
Enforceability
EEOC mediation agreements are enforceable as contracts in state or federal court. If the employer fails to make the agreed-upon payment or breaches other terms, you can file a breach of contract action. The agreement should specify the venue for enforcement (which court) and whether the prevailing party recovers attorney fees in an enforcement action.
Not every mediation results in a settlement. Approximately 25% of EEOC mediations end without an agreement. Understanding what happens next helps you make informed decisions during the mediation itself.
Can You Mediate Again?
Yes, in some cases. If circumstances change -- for example, if new evidence emerges, if the employer's business situation changes (making settlement more attractive), or if significant time passes and both parties have a different perspective -- either party can request that the EEOC offer mediation again. The EEOC is generally receptive to second attempts at mediation if both parties are willing.
If mediation fails, consider whether to request your right-to-sue letter immediately (to preserve your right to litigate) or to allow the EEOC investigation to proceed. An EEOC "reasonable cause" finding significantly strengthens your position in litigation, but waiting for the investigation can take a year or more. An employment attorney can help you evaluate the strategic tradeoffs based on your specific situation.
Yes, EEOC mediation is completely free to both the charging party (employee) and the respondent (employer). The EEOC provides the mediator and the mediation space at no cost. The EEOC uses both internal mediators (EEOC employees trained in mediation) and external mediators (experienced private mediators who volunteer or contract with the EEOC). Neither party pays anything for the mediator's time or the use of the facility. The only costs you may incur are for your own attorney if you choose to bring one, and for your time spent preparing and attending the session.
No, legal representation is not required for EEOC mediation, and many people participate successfully without an attorney. However, having an employment attorney can be valuable, particularly if your case involves significant damages, complex legal issues, or if the employer will be represented by counsel. An attorney can help you evaluate your case realistically, prepare your negotiation strategy, review the settlement agreement before you sign, and ensure the tax allocation is optimal. Many employment attorneys offer free initial consultations and can provide strategic guidance even if they do not attend the mediation session with you. If you cannot afford an attorney, consider contacting your local legal aid office or bar association for referrals to low-cost or pro bono employment law resources.
The average monetary benefit in EEOC mediation settlements ranges from approximately $15,000 to $25,000 for individual charges, though amounts vary widely based on the nature of the discrimination, the strength of the evidence, the charging party's lost wages, the employer's size, and the applicable statutory damages cap. Cases involving termination with significant back pay typically settle for higher amounts than cases involving harassment without job loss. Multi-case mediations (where multiple related charges are resolved together) can produce significantly higher settlements. Some mediations result in non-monetary resolutions only (policy changes, reference letters, reinstatement), and others exceed $100,000 in particularly strong cases involving large employers.
No. EEOC mediation is protected by strict confidentiality rules. Both parties sign a confidentiality agreement before the session begins. Nothing said during mediation -- including admissions, offers, counteroffers, and discussion of case strengths and weaknesses -- can be used in any subsequent EEOC investigation, administrative hearing, or court proceeding. The mediator's notes are destroyed after the session. The mediator cannot be called as a witness. If mediation fails and the case proceeds to investigation, the EEOC investigator receives no information about what occurred during mediation. This confidentiality protection is what allows both parties to speak candidly and make concessions during negotiation without risk.
The mediation session itself typically lasts 3 to 4 hours, though some complex cases may take a full day. The EEOC generally schedules mediation sessions within 30 to 60 days of both parties agreeing to participate. From the date the charge is filed, the median time to resolution through mediation is approximately 85 days -- compared to 10 to 18 months for cases resolved through the investigation process. If mediation is successful, the settlement agreement is typically signed at the end of the session, and payment is usually required within 14 to 30 days of execution. The entire process, from charge filing to receiving your settlement check, can be completed in less than four months.
You may bring an attorney or other representative to EEOC mediation, but you should notify the EEOC mediator in advance. The EEOC also typically notifies the other party so they can arrange representation if they choose. You generally cannot bring additional support persons (friends, family members) into the mediation session itself, as this can change the dynamics and raise confidentiality concerns. However, support persons can wait in the building or be available by phone during breaks. If you have a disability that requires a support person or accommodations, the EEOC will make reasonable accommodations for the mediation session -- notify them in advance of any needs.
If the employer fails to comply with the terms of the mediation settlement agreement, you have several enforcement options. First, contact the EEOC to report the breach -- the EEOC monitors compliance with mediation agreements and may intervene. Second, you can file a breach of contract action in state or federal court to enforce the agreement. The settlement agreement is a legally binding contract, and a court can order the employer to pay the agreed amount plus any damages caused by the breach (such as attorney fees incurred to enforce the agreement, interest on late payment, etc.). Many well-drafted settlement agreements include a provision requiring the breaching party to pay the other side's attorney fees and costs in any enforcement action, which creates a strong deterrent against non-compliance.
Yes. Mediation is entirely voluntary for both parties. If you decline mediation, your charge will proceed through the normal EEOC investigation process without any penalty or negative inference. The EEOC will not view your refusal to mediate negatively. However, before declining, carefully consider the benefits: mediation resolves cases in an average of 3-4 hours versus 10-18 months for investigation, it is free, it is confidential, you maintain full control over the outcome, and it has a 75% resolution rate. The investigation process may result in a "no reasonable cause" finding, leaving you with only the option of filing a private lawsuit. Many employment attorneys recommend at least attempting mediation, since you can always walk away if the employer's offers are unreasonable, and nothing you say can be used against you later.