Country:
U.S.A.

Language:
English

The underpinnings of the American employer-employee relationship have their roots in the fact that the earliest employers owned the land on which their employees worked and lived. Thus, those employers supplied virtually all of their employees' needs, took care of any disputes that arose, and, essentially, cared for their employees as parents would care for their offspring. However, as society moved from an agrarian society to a more industrialized one, the employer-employee relationship became more removed. Despite that fact, the employment relationship remained patriarchal in nature such that the employer could terminate the relationship whenever it saw fit and for whatever reasons deemed necessary. Similarly, the employer could also terminate the relationship whenever it chose and for any reason. As a result, the American employment relationship was deemed to be employment at will.

Assistant Professor of Conflict Management Studies, DePaul University Kellstadt Graduate School of Business, Chicago, Illinois

Index

I. Background
II. Substantive Provisions
of US Employment
Discrimination Law
III. Processing of
EEOC Charges
IV. The Movement to
Alternative Dispute
Resolution (ADR)
V. The Mediation Process
VI Conclusion

I. Background

The underpinnings of the American employer-employee relationship have their roots in the fact that the earliest employers owned the land on which their employees worked and lived. Thus, those employers supplied virtually all of their employees' needs, took care of any disputes that arose, and, essentially, cared for their employees as parents would care for their offspring . However, as society moved from an agrarian society to a more industrialized one, the employer-employee relationship became more removed. Despite that fact, the employment relationship remained patriarchal in nature such that the employer could terminate the relationship whenever it saw fit and for whatever reasons deemed necessary. Similarly, the employer could also terminate the relationship whenever it chose and for any reason . As a result, the American employment relationship was deemed to be employment at will .

With the onset of the twentieth century and the rise of the Progressive movement and the New Deal, and continuing to date, protective legislation was enacted and the employer's right to hire and fire was circumscribed to a great extent. As a result, employees could often sue their employers, or file charges with various governmental agencies, and, perhaps more importantly for mediation, they held the perception that the employment relationship had certain rights attached to it .

One of the principal pieces of protective legislation was the Civil Rights Act of 1964 . That historic statute was passed after the landmark decision of the United States Supreme Court that equal but separate educational facilities based on race would no longer be considered constitutional and the boycotts, marches, and civil disobedience of the civil rights movement . In fact the Act was passed soon after the famous "I Have a Dream" speech of Dr. Martin Luther King when, at the steps of the Abraham Lincoln Memorial in Washington, D.C., he declared:

…When the architects of our republic wrote the…Constitution
and the Declaration of Independence, they were signing a promissory note…
that all men - yes black men as well as white men - would be guaranteed the inalienable rights of life, liberty and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar
as her citizens of color are concerned…we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream…

…I still have a dream…I have a dream that my four little children will one
day live in a nation where they will not be judged by the color of their skin but
by the content of their character…

Recognizing this fundamental protection in these statutes, one scholar has opined that the nation's employment discrimination laws were meant to ensure peace and to promote prosperity . Moreover, the federal courts have spoken of workplace civil rights statutes, includes Title VII, as involving rights of the highest order .
The march of protective legislation continued with various amendments to the Civil Rights Act in 1972, 1978, and, most recently, in 1991. In addition, many of the states of the nation passed their own civil rights statutes affecting employment which were very often more expansive that that passed by the US Congress .

II. Substantive Provisions of US Employment Discrimination Law

Title VII prohibits discrimination in hiring, firing, training, promotion, discipline, discharge or any workplace actions based on race, color, gender, national origin, or religion . The subsequent legislation passed in 1972 and 1991 added to this list of "protected classes" employees 40 years of age or older, pregnant employees, and employees with certain physical and/or mental disabilities . All employers with 15 or more employees, as well as federal, state, and local employers must comply with the Act .

Employees who believe that they have been the victims of prohibited discrimination must file with the Equal Employment Opportunity Commission (EEOC) and must do so within 180 days of the discriminatory event . Once the charge is filed these employees, now known as "claimants" or "charging parties," take part in an investigation by the EEOC which will also involve the employer. If the EEOC finds that there is reasonable cause to believe that there has been a violation of the Act, and there has been no settlement of the claim, it will file a civil action in federal court. If on the other hand the EEOC finds that there is insufficient evidence to proceed with the charge, the claimant is provided a "right to sue" letter and he or she may proceed on their own initiative with a lawsuit in federal court. In either event, if the charge is sustained by the federal court, the claimant is entitled to, inter alia, restoration of his employment, back pay and other compensatory damages, and, in some circumstances, punitive damages .

Claimants may prove unlawful discrimination in one of two ways. The first, known as disparate treatment, is the theory of discrimination that an employer intended to discriminate against an employee because of his membership in a protected class . In order to succeed with such a theory the claimant must prove that he or she was a member of a protected class and suffered some adverse employment action . If the claimant proves these elements of the charge, the burden of proof shifts to the employer to prove that it took the adverse action because of some legitimate business objective. Should the employer succeed in this regard, the burden shifts back to the claimant to prove that the asserted legitimate reason for the action was a pretext . In the second theory of employment discrimination, known as disparate impact, the allegation is that the claimant has been harmed by the operation of an employer's policies because although the policies are facially neutral, they have a disparate impact on those employees who are members of a protected class . Thus, motive is imputed and the claimant need not prove the employer's subjective state of mind . Once the claimant succeeds in this effort, the burden of proof shifts once again to the employer, this time to prove that the disqualifying policy was a "bona fide occupational qualification" . If the employer proves this "BFOQ," the burden shifts back to the claimant to prove that the employer could achieve its same legitimate need through a means that would be less harmful to those in the protected class .

Another significant area of employment discrimination law has become known as sexual harassment. Under this portion of Title VII courts have construed the Act's prohibition of gender discrimination to include workplace conduct by an employer of a sexual nature. The first type, known as "quid pro quo" discrimination, exists when conditions of employment are premised on whether an employee submits to requests or demands for sexual favors. The second, known as "hostile work environment," is proven when an employee can show that an employer's conduct is of a sexual nature and has unreasonably affected the employee's well-being and/or work performance .

III. Processing of EEOC Charges

Despite the promise of Title VII, its impact has been severely reduced by the huge number of cases filed and the burdens placed on the EEOC and the federal courts associated with this growth. For example, as of 1993 employment litigation had grown faster than any other substantive area of the law such that there were almost 1,000% more of these cases than others . Moreover, the growth of employment litigation between 1970 and 1990 was at a rate of twenty times . As noted above, state and local legislation also regulate employment discrimination and is often broader than that in federal law. Thus, in 1993 there were an additional 25,000 "wrongful discharge" cases in the state courts as well . Finally, the sheer number of cases was not the only staggering statistic, for in 1993 the claimants won approximately 70% of these cases and the average jury award was $600,000 . The number of cases filed with the EEOC created a burden such that 1990 was the last time as of 1995 that the agency was "relatively current" in case processing . This trend has continued relatively unabated to the current day. For example, between 1991 and 1997 the number of employment discrimination cases filed in federal court rose from just over 8,000 to approximately 24,000 and accounted for one out of every 10.8 cases filed with the courts in 1998 . In light of these trends it is axiomatic that the delay to justice and the cost thereof is staggering .

IV. The Movement to Alternative Dispute Resolution (ADR)

With the increasing number of cases filed, the costs associated with processing those cases, and the delay inherent to the US administrative and judicial system, it is no surprise that alternatives have been sought . In addition, alternatives have been sought because even for the party that prevails in litigation, the cost, both economic and non-economic can be so great, that prevailing before a court is indeed a Pyrrhic victory . This has been true despite the fact that some believe ADR to be "second-class" justice . These concerns have led one author to note that the trend to ADR, especially its endorsement in newer civil rights statutes, is a significant shift in congressional and public attitudes . Part of the reason for the embrace of ADR has not been limited to the cost of litigation, but also because ADR procedures have improved over time . In addition, ADR is seen as increasing the participation and voice of the disputants which, in light of the increasing diversity of today's workforce, has given rise to conflict in values even among well-meaning employees. In fact, ADR can reconcile these conflicting values while also preserving confidentiality and enhancing on-going relationships in flexible, creative, and innovative ways . As a result more large employers prefer ADR as an alternative to litigation and even a casual review of litigation news confirms this trend . Moreover, legislation has been proposed to require certain employers to use mediation in these types of cases and even the governmental agencies charged with enforcing the employment discrimination laws have embraced the use of mediation . For example, in 1992 the EEOC commissioned a pilot project to consider the use of mediating cases filed with the Agency.

The pilot project yielded results whereby 87% of charging parties agreed to mediate while only 43% of employers did so as well. Ultimately, 29% of the cases considered appropriate for mediation were mediated with a settlement rate of 52% and an average time from filing to settlement of 67 days. (The average time from filing to completion of EEOC processing was 294 days.) Moreover, exit interviews indicated that 66% of charging parties and 72% of employers were satisfied with the mediated outcomes and that approximately 90% of both categories believed that the mediation process had been fair . With these results, the EEOC implemented a mediation program and numerous cases were mediated between late summer of 1999 and early winter of 2000 . However, the success of these programs however was imperiled early on by the vagaries of the appropriation process in the United States Congress . In fact, the mediation program instituted by the EEOC faced budget cuts despite the fact that the agency expected to resolve 8,000 charges in fiscal year 2000 and that mediation helped to decrease the agency's backlog of cases to 23%, the lowest number since 1984 .

There are as well, non-economic reasons for turning to mediation in order to resolve employment disputes. Stated another way, an examination of the effectiveness of mediation often answers the question asked by many negotiators and disputants, i.e. "What do we need a mediator for?" Perhaps this question can best be examined by identifying the barriers that the parties themselves fact to reaching concensus on their own intitiative. Those barriers have been identified as the fact that the institutions involved in the dispute simply do not have a forum for resolving conflict, that the disputants have become inflexible and/or have little experience working with each other when they do not trust each other, that clear communication between the disputants has become impossible because of, for example, hostility, distrust, or misperception, that the issues in dispute are complex, and/or that the respective rights and obligation of the parties are ambiguously defined, if at all . Mediation generally can achieve results that the parties often cannot achieve for themselves and it does so by reducing the informational barriers that are inherent in unassisted negotiations. For example, a mediator can often improve the flow of information and reduce the effects of false or biased assumptions . This can be especially effective in employment disputes where the parties, most often the complainant, feels that he or she has been betrayed or personally targeted and therefore cannot speak to the party that is held responsible. In addition, evaluation studies have shown that disputants find mediation useful because it enables them to deal with issues that they felt were important and gave them a sense that they had been heard . Moreover, respondents reported these feelings even when there was no settlement reached in mediation or in those cases where they thought a settlement was less than the result they expected in litigation . For example, a second series of studies also showed that parties in mediation had a high degree of process satisfaction, i.e. notwithstanding the result of the mediation, they found significant satisfaction with the fact that the process had been concensual, that they had the opportunity for meaningful input as to the outcome , and the opportunity for full-self expression . In fact, respondents often placed greater emphasis on these aspects of the mediation process to the exclusion of expediency, efficiency, or finality .

In employment disputes these factors take on even greater importance. For example, mediating employment disputes often provides a significant opportunity to craft a creative settlement that could not be devised in litigation . In fact, one scholar has noted that mediation is not directed toward achieving conformity with norms, but rather to enable the parties to create the norms to which they will conform. In other words, the mediator will assist the parties to free themselves from the encumbrances of rules and to accept instead a relationship of mutual respect, trust and understanding that will enable them to meet shared contingencies without the aid of formal prescriptions laid down in advance . Among the examples in the author's personal experience are settlements that include a barter of goods or services, converting discharges into resignations, letters of reference, and/or apologies . Moreover, employment discrimination disputes often involve conduct by an employer that may not be unlawful, but is, or perceived to be, unfair in some other way. In litigation of course this issue would never be joined as it would not be relevant to the merits of the lawsuit. In mediation however it will often be discussed and might very well be the key to settlement . The mediation not only provides the chance to address these subjects but to do so in a way that the parties can communicate their sincerely held feelings and how those feelings fit, if at all, into a framework of legal liability . Thus, mediation allows employees to express themselves in a different and more equal way which can open lines of communication between the employer and the employee . As a result, settlement often follows and does so because, psychologically speaking, the fairness and respect inherent in mediation produces the opportunity for conciliation . Finally, because mediation, and any settlements reached in mediation, are confidential, an employer has a strong incentive to mediate in order to ensure that any allegations and supporting facts are not made public and to ensure that other employees will not also file charges simply because another has done so and received a settlement .

The efficacy of mediation, particularly in employment disputes, can be further established by examining the various models of mediation and how each can be helpful in resolving these types of disputes. There are ordinarily three models of mediation: the evaluative, facilitative and transformative . In the evaluative model, the mediator may question the parties evaluation of their alternatives to a negotiated agreement, challenge the assumptions behind their positions, evaluate the legal case and, perhaps most fundamentally, give advice and/or make recommendations for settlement . On the other hand, the facilitative mediator will employ some of the techniques of the evaluative mediator (e.g.s, challenge a parties' perception of reality, helping them to consider the alternatives to a negotiated agreement) but will not give advice nor make recommendations for settlement. Moreover, facilitative mediators may also seek attitudinal change and the nurturing of relationships . In transformative mediation the goal is not simply to reach a negotiated settlement, but rather to use the conflict as an opportunity for personal growth . Thus, by focusing on personal growth, empowerment and recognition, settlement is likely to come about .

In the context of an employment dispute therefore any of the three models of mediation can be used. For example, if the dispute is merely perceived as an economic issue to be resolved on the basis rights under the law and the relative costs to the parties of resolving the issue of competing rights under the law in litigation, an evaluative mediator can be useful to help the parties view the matter in this fashion. In the author's own experience such a perspective of the dispute is not uncommon among agents of entities insuring an employer in these types of disputes and, to a lesser degree, the lawyers representing them in the litigation. This approach may of course be problematic if the relationship between the disputants is to continue after the settlement or litigation. On the other hand, using a facilitative mediator can enable the parties, as described more fully below, explore the emotions, values, and/or needs underlying the legal dispute and can often lead to settlements that do not turn on, and may not even address, their relative legal rights and obligations. This approach may of course help to heal the relationship that underlies the dispute and is particularly useful in continuing relationships. The transformative mediation model, with its emphasis on empowerment and recognition and only a residual emphasis on settlement, is apt for internal dispute resolution systems where employees and employers met and discuss their conflict as it happens or perhaps before the dispute has ripened into a lawsuit.

There are however, some challenges in mediating employment discrimination disputes that are inherent to mediation. For example, there will undoubtedly be a disparity of resources between those of the employer and those of the individual complainant. For example, using the customary arrangement in mediation that the parties share the cost of the mediation might be an impediment to the participation of the complainant. Similarly, if the employer subsidizes the entire mediation, there is a risk of bias on the part of the mediator or that the complainant will not be sufficiently invested in reaching settlement . In addition, when the complainant is not represented by counsel or other knowledgeable representatives, there is a risk of an imbalance of power in that the employer will often be familiar with the underlying law and risks of litigation, but the complainant will not .

V. The Mediation Process

The mediation process in employment discrimination cases does not differ much from the process followed in most disputes. The mediation commences with the mediator's opening statement after which each of the disputants gives an opening statement of their own. This is followed by a joint session characterized by the facilitation by the mediator of a discussion between the disputants which may or may not include one or more private sessions between the mediator and the parties. There will then be one or more joint sessions to either continue the negotiations, confirm the settlement, or end the mediation if no settlement is reached.

The purpose of the mediator's opening statement is severalfold. First, and most obviously, the mediator will endeavor to inform the parties to the mediation. This is important because the mediator cannot be certain whether the parties are familiar with the mediation process and even if they are, as disputants it is not uncommon that they are nervous and/or apprehensive and therefore unsure of what to expect . Therefore, in his or her opening statement the mediator will briefly explain the mediation process, his or her role, the order in which the parties' may present their opening statements, the fact that the mediator will facilitate a dialogue between the parties, that at one or more points in the process the mediator will call a caucus with each of the two sides, and that if the parties reach an agreement it will reduced to writing and signed in either a preliminary format or, if no further clarifications are needed, in final form. The mediator will also include in the opening statement a discussion of the confidentiality of the mediation and, within the confidentiality of the mediation as a whole, the confidentiality of any exchanges with or disclosures to the mediator in caucus, unless the mediator is authorized to share any particular information gleaned during the caucus.

In addition to any informational purpose however, the mediator in his or her opening statement will also use that time to begin to develop a relationship of trust and build rapport with the disputants. This can be achieved not only through the content of the opening statement, but also the manner in which it is delivered, particularly if he or she exhibits an enthusiastic, positive, and encouraging attitude . Even the mediator's personal style, manner of speech, dress, and social background can influence this element . The impact of this trust between the parties and the mediator will enable the parties to engage in a produtive and frank exchange of facts and perceptions necessary to a possible solution . This is so because rapport between individuals includes, by definition, the ability to communicate freely, a level of comfort between the parties, and the quality of human contact .

Next, if there are no questions of the mediator, the mediator will ask each of the parties' to make an opening statement, usually commencing with the complainant. Here, there is often a question whether the opening statement is to be made by the disputant or his or her representative. Although the choice is left to the parties themselves, most employment mediators will make an effort at that point in the mediation, and certainly as the mediation goes forward, to bring each of the disputants in as an active participant . For example, the opening statements might very well be the first time that the have actually listened and spoken to one another without interruption . At the end of each opening statement the mediator will summarize what he or she has heard in order to ensure that it was understood, to demonstrate to the parties that he or she listened and, if necessary, to diffuse any ill will or vitriolic statements that might have been made.

Following the parties' opening statements the mediator will ask questions that will help him or her understand the facts, the issues, and the parties' positions. In addition the mediator will attempt to facilitate dialogue between the parties, sometimes by the questions that he or she asks and/or by asking one side to address some point made by the other. In this phase of the mediation the mediator will concentrate on asking open-ended questions intending to elicit responses that will elaborate on the facts and issues presented in the dispute. The mediator may also ask pointed questions in order to clarify the facts and/or positions of the parties. In doing so the mediator is attempting to gather more information in order to clarify and understand any confusing factors or issues. Indeed, it is absolutely essential that the parties clearly understand the dimensions, characteristics, and perspectives that give shape to a problem before they can seek to develop solutions . Moreover, seeking background and historical information can also be helpful in detecting areas of mutual concern and overlapping considerations. Finally, asking questions about the facts and concerns of the parties will enable the mediator to use neutral language to describe the dispute and the parties' positions so that he can rephrase the parties' conversation in order to points out areas of agreement .

Perhaps more importantly however, the mediator will begin to listen to the verbal and non-verbal expressions and cues in order to ascertain not only the positions of each party but, more importantly, to discover what their interests are and how those interests form the foundation for the positions that they have taken. The mediator engages in this quest because the positions that a party takes will often fail to satisfy their interests or because there may be other ways to satisfy those interests that may be agreeable to the other side . In addition, parties often fail to identify their interests for a variety of reasons, including they simply do not know what their interests are, they pursue a strategy of hiding their interests on the assumption that they will gain more from a settlement if their genuine goals are obscured, that they have adhered so strongly to a position that their interests have become equated with that position, or that they are unaware of the processes that can be used to identify their interests . For example, experience shows that many times in employment discrimination cases although a complainant's position may be that he or she be reinstated to his or her job, the underlying interest is a question of respect or some other dysfunctional relationship. Thus, if those interests are identified and addressed the dispute can often be resolved with little, if any, resort to the positions taken in the litigation .
In fact, this process of identifying and addressing interests is so important to the mediation process that it continues throughout the mediation. Among the direct techniques, i.e. those techniques that are not primarily intended to facilitate communication like active listening, restatement, paraphrasing, summarizing, and reframing, that mediators use to identify interests are testing, hypothetical modeling, direct questioning, and brainstorming. In testing the mediator will listen carefully to a parties statements and feed back to them the interests that he or she has identified. In hypothetical modeling, the mediator will discuss with a party potential solutions and ask not whether they will agree, but what their views are on the potential option. In brainstorming the mediator will engage the parties in generating options for settlement without any evaluation in order to create a problem-solving exercise . Finally, the mediator will help each party feel heard and to hear the other side, identify key issues, frame and reframe those issues, manage emotions and communication, deal with unproductive power dynamics, work across cultural, gender, class, and other differences, and encourage incremental and reciprocal risk taking .

As noted above in the description of the mediator's opening statement he or she will call one or more caucuses with the parties. The mediator will call for a caucus for a variety of reasons including, but not limited to, providing a pause in the process, to conduct reality testing, to uncover confidential information, and to control the communication process if it has been counter-productive . In fact, the mediator's strategic purpose for calling the caucus will also dictate to some extent the timing of the caucus. For example, if the mediator calls for a caucus early in the session, it is most likely in order to control the communication flow while a caucus late in the mediation is probably intended to break deadlocks, develop or assess proposals, or develop a settlement formula . In those confidential sessions the mediator will continue the interests analysis and will probably explicitly address these interests to learn the extent to which they are important to the dispute and how they may be used to form a solution or settlement to the dispute. In addition, he or she will begin the process of assisting the parties in assessing the possible solutions to the dispute, using not only the interests of the parties, but also by testing their perceived reality of the dispute and potential solutions, discussing what will happen if there is no agreement, looking at the dispute from the perspective of the other side, and perhaps even discussing the strengths and weaknesses of their case as well as that of the other side.

The mediator will engage in these types of activities during caucus because he or she is alone with the party while doing so. In other words, because the other party is not present during the discussion and because the discussion is confidential to the extent that the party limits disclosure by the mediator, the mediator can play a stronger role as the ally of the party in the problem-solving and can be more supportive than he or she could in joint session. Conversely, but for the very same reasons, the mediator can also be more firm with the parties when he reality tests and uses the other techniques describe above . Quite frankly, the caucus provides the greatest opportunity for a mediator to manipulate parties into agreement by controlling and suppressing the data exchanged in the sessions. Thus, the ethics of such control and the proper role of the mediator has not been without heated debate .

Through the use and combination of multiple caucuses and/or joint sessions the mediator will use the interests of the parties and the testing and probing of their positions and interests to move each side closer to the other. The mediator will also encourage creativity, articulate and solidify potential agreements, apply appropriate amounts of pressure, and discuss implementation of any potential settlement . Ultimately this will lead to either a settlement of the dispute or the conclusion of the mediation in the event that no settlement is reached.

VI Conclusion

The mediation process affords the parties an opportunity to not only settle their dispute, but to do so in a manner which can enhance their relationship and to achieve results that might be unattainable in another forum. Thus, the parties mediator will approach the dispute as an effort in joint problem-solving. This does not mean of course that any considerations relevant to the law or litigation are to be abandoned for that is the reality of the context in which the mediation takes place and it is very real for the mediator as well as the parties. However, it does not require that those considerations be shaped by problem-solving behavior. This delicate balance can be achieved and if it is, it will be to the benefit of all involved.

1. Employment Law for Business, Dawn D. Bennett-Alexander and Laura Pincus, 2nd Edition, Irwin Publishing, at page 8.

2. Id at page 6.

3. Id at page 8. See also, Government Regulation of Workplace Disputes and Alternative Dispute Resolution, Lamont E. Stallworth, Industrial Relations Research Association Series, 1997, at page 370.

4. Id at page 8-9.

5. 42 U.S.C. Sections 2000e et seq., Section 703(a). The Act is also known as Title VII.

6. Brown v. Topeka Board of Education, 347 U.S. 483 (1954)

7. Bennett-Alexander and Pincus, at page 62

8. Quoted in In Our Own Words, Torricelli and Carroll, editors, pages 234-237, 1999.

9. See The Interaction of the Americans With Disabilities Act and Alternate Dispute Resolution Within the EEOC, R. Gaull Silberman, St. John's Journal of Legal Commenatary, Summer, 1995, at page 573

10. See e.g.s, Fogerty v. Fantasy, Inc., 114 S. Ct. 1023 (1994) Independent Federation of Flight Attendants v. Apes, 491 U.S. 754, 759 (1989)

11. Bennett-Alexander and Pincus, id at page 63

12. Bennet-Alexander and Pincus, id at page 65; 42, United States Code, Section 2000e et seq.

13. 29 United States Code, Section 621-634; 42 United States Code, Section 2000e(k);

14. 42 United States Code, Section 12101 et seq; Internationally, provisions similar to 42 United States Code, Section 2000e and 29 United States Code appear in the policies and laws of the European Union (76/207/EEC,1976 O.J. (L 039), France (Art. L 13-1, 211 et seq, and 323-1 of the Labor Code), Germany, Italy (Law No. 7 of February 9, 1963 and Art. 1, Law No. 903), Spain (Law 13/1982 of April 7), the United Kingdom (Sex Discrimination Act of 1975, Race Relations Act of 1976, and the Disability Discrimination Act of 1995), Canada, Mexico, Japan (Article 14 of the Constitution), and South Africa (LRA Section 187) all of which are cited in International Labor and Employment Laws, Volume 1, Bureau of National Affairs, 1997, William Keller, editor.

15. Bennett-Aleaxander and Pincus, id at page 65
However, if the state in which the alleged violation occurred has a similar agency, the charge must first be filed with that state agency. If the state agency in question has had the charge for 60 days, the charging party may then file with the EEOC. See, The Legal Environment of Business, John Blackburn, Elliot Klayman, and Martin Malin, 5th edition, Irwin Publishing at page 472.

16. Bennett-Alexander and Pincus, id at pages 67-71.

17. Bennett-Alexander and Pincus, at page 72, et seq; Blackburn et al at page 451, et seq.

18. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Blackburn, et al at page 452

19. McDonnell Douglas Corp., supra.

20. Blackburn, et al, id at page 453.

21. Griggs v. Duke Power Co., 401 U.S. 424 (1971)

22. Blackburn et al, id at page 456-458.

23. Bennett-Alexander and Pincus, id at pages 76-77; Blackburn et al at page 453. See also, United Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991)

24. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

25. Harris v. Florklift Systems, Inc., 510 U.S. 17 (1993); Ellison v. Brady, 924 F. 2d. 872 (9th Cir., 1991); Blackburn et al, id at pages 461-465.

26. Legal and Practical Implications of ADR and Arbitration in Employment Disputes, Evan Spelfogel, 11 Hofstra Labor Law Journal 247, 248 (1993)

27. id at 248

28. id at 248.

29. Id at 248, citing Using Compulsory Arbitration to Resolve EEOC Disputes, Robert Layton, New York Law Journal, 1992. See also, The Americans With Disabilities Act and ADR: Approaching an Adequate Adjudicatory Allocation, Jeffrey Ferrier, Catholic University Law Review, Summer, 1996, at page 1281-2.

30. Silberman id at page 577

31. EEO Cases Are Growing Proportion of Federal Court Workload, Study Finds, Daily Labor Report, Bureau of National Affairs, A-10, 3/25/99; Job Bias Lawsuits Tripled in the 1990s, U.S. Says, Chicago Tribune, January 17, 2000.

32. Arbitration and the ADA: Do the Two Make Strange Bedfellows? 37 Res Gestae 168, (1993)

33. See e.g., Silberman, id at page 576, (noting that the EEOC's inability to serve the public impacts on all, whether or not they are a disputant in the matter at hand).

34. See e.g., the story told by one advocate of his client who, even after a major jury verdict in his favor, said "If I had to do it over again I don't know whether I would." See, Nonbinding Mediation of Employment Disputes, Trial Magazine, Robert Fitzpatrick, Volume 30, June, 1994, page 40.

35. See e.g.s, Against Settlement, Owen M. Fiss, 93 Yale Law Journal 1073, 1076-78, 1984 (contending that an ADR settlement may be distorted by inequalities in the parties' bargaining power and resources) and Alternative Dispute Resolution: Panacea or Anathema?, Harry T. Edwards, 99 Harvard Law Review 668, 679-681, 1984 (concerned that mediated settlements may strain the virtues of adjudication in that litigation ensures the proper resolution of public values).

36. Alternative Dispute Resolution of Employment Discrimination Claims, R. Gaull Silberman, Susan E. Murphy, Susan P. Adams, Louisiana Law Review 54, page 1533 (1993-94)

37. Silberman et al, id at page 586.

38. Silberman et al, id at 1563, 1568.

39. See e.g., Most Large Employers Prefer ADR As Alternative to Litigation, Survey Says, Daily Labor Report, BNA, May 14, 1997, page A4-5; Cornell University/Price Waterhouse Coopers/PERC Issue Final Report on Use of ADR by American Business, ADR Report, November 26, 1998, pages 2-5.

40. See e.g.s, Judge in Coca-Cola Bias Case Orders Mediation, ADR Report, February 16, 2000; Black Maintenance Workers and Amtrak Mediate $16 Million Accord in 1998
Suit, ADR Report, Mach 15, 2000; Amtrak and Black Managers Successfully Mediate Claim, ADR Report, July 7, 1999; Smith Barney Issues Offers to Resolve 2,000 Sexual Harassment Claims, ADR Report, December 8, 1999; Compliance with Merrill Lynch Settlement Debated in Court Reports, ADR Report, September 29, 1999; Mitsubishi Succeeds in Implementing Mediated Sexual Harassment Settlement, ADR Report, January 5, 2000; Sexual Harassment Charges against Ford Settled Without Court Intervention, ADR Report, September 125, 1999; How Mediation Facilitated $3.2 Million Settlement in Sexual Harassment Suit, ADR Report, August 18, 1999.

41. Employment Dispute Mediation Proposal Heard by Arbitrators, ADR Report, June 24, 1998; Arbitrator/Mediator Urges Legislation To Encourage Job Dispute Mediation, Daily Labor Report, Bureau of National Affairs, June 9, 1998; Legislation to Encourage Job Dispute Mediation Urged, Individual Employment Rights, Bureau of National Affairs, Jun 16, 1998. The legislation in question, the National Employment Dispute Resolution Act, would require certain contractors with the federal government to establish internal dispute resolution programs providing for the use of third-party neutrals and to participate in the mediation of employment disputes under that program. Moreover, the Act provides that funding for the program would be undertaken by the federal government and/or the contractor. See, EEO Mediation at the EEOC, Proceedings of the 51st Annual Meeting of the National Academy of Arbitrators, Lamont Stallworth and Arup Varma, Bureau of National Affairs, 1998, at pages 37-59.

42. Illinois Human Rights Commission and CEDR Offer ADR for Job Bias Cases, World Mediation Report, April, 1994; 'Significant' Expansion of ADR Program in Works, EEOC Chairperson Says, ADR Report, December 23, 1999; EEOC Announces Details of Mediation Plan, ADR Report, February 17, 1999.

43. An Evaluation of the Equal Employment Opportunity Commission's Pilot Mediation Project, Executive Summary, Center for Dispute Settlement, March, 1994; EEOC Adopts ADR Methods, Dispute Resolution Journal, October/December, 1995, at 17.

44. Equal Employment Opportunity Commission's Alternative Dispute Resolution Policy Statement, July 17, 1995.

45. EEOC's Use of Contract Mediators Threatened by Budget Cuts, ADR Report, January 5, 2000.

46. Id at page 2.

47. EEOC Mediation Program Slams into Budget Wall, HR News, Volume 19, No. 4, April, 2000, at page 8.

48. The Concensus Building Handbook, Lawrence Suskind, Sarah McKearnan, Jennifer Thomas-Larmer, editors, Sage Publications, 1999, at pages 203-204.

49. "What Do We Need a Mediator For?": Mediation's Value-Added for Negotiators, Robert A. Baruch Bush, Ohio State Journal of Dispute Resolution, Volume 12, Number 1, at pages 14-15, 1996.

50. Id at 17

51. Conclusion: A Research Perspective on the Mediation of Social Conflict, in Mediation Research: The Process and Effectiveness of Third-Party Intervention, Kenneth Kressel & Dean Pruitt, at 394-396, 1989

52. The Dynamics of Conflict Resolution: A Practitioner's Guide, Bernard Mayer, Jossey-Bass, 2000, at page 191.

53. Bush, id at 18-19.

54. Bush, id at 20.

55. Mediation as a Settlement Tool for Employment Disputes, Donald Reder, Labor Law Journal, 1992, at 602-603.

56. Mediation-Its Forms and Functions, Lon Fuller, 44 Southern California Law Review 305, 308, 325-26, 1971.

57. See e.g., The Use of Apology in Employment Cases, David Hoffman, copyright 1998, in which it is noted that apologies have the effect of enabling the recipient of the apology to see the dispute from the other party's side and that apologies have the effect of restoring trust. See also, The Handbook of Conflict Resolution, Morton Deutsch and Peter Coleman, Jossey-Bass, 2000, at pages 57-63 and 101-104.

58. See e.g,. Deutsch and Coleman, id at pages 53-54, (discussing injustice as a source of conflict).

59. Reder, id at 603.

60. Deutsch and Coleman, id at pages 249-252

61. Mediation's On - Grab a Spoon, Peter Petesch and Joshua Javits, HR Magazine, April, 2000, Volume 45, No. 4, at page 164

62. Mediating Claims of Discrimination, Matthew W. Daus, Dispute Resolution Journal, October/November, 1995 at page 53.

63. Stallworth, id at page 383.

64. Dictionary of Conflict Resolution, Douglas Yarn, editor, Jossey-Bass, 1999 at 274.

65. The Promise of Mediation, Robert Baruch Bush and Joseph Folger, Jossey-Bass, 1994.

66. Yarn, id at 279

67. id at 280

68. id at 280

69. Bush and Folger, id at 81-82, 107

70. Mediation In Employment Disputes, Carol Wittenberg, Susan Mackenzie, and Margaret Shaw, in Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators (Little, Brown, 1996)

71. id. See also, Ruminations About Professional Responsibilities and Ethics for the EEO Neutral and ADR Providers: The Unrepresented Claimant, Power Imbalance and Designing ADR Programs, Lamont Stallworth, Unpublished Speech before the American Arbitration Association, September 22-23, 1995, Washington, D.C.

72. Unless otherwise noted, sources for this portion of this paper are from Mediation Advocacy, Unpublished Speech to the National Employment Law Institute, Robert Perkovich, Chicago, Illinois, November 11, 1999; Mediation Advocacy, John Cooley, NITA Press, 1996, and Representing Clients in Mediation, Eric Galton, Texas Lawyer Press, 1994.

73. Mediation: Principles and Practice, Kimberlee Kovach, West Publishing, 1994, at page 83.

74. Id at pages 82-83.

75. The Mediation Process: Practical Strategies for Resolving Conflict, Christopher Moore, Jossey-Bass Publications, 1986, at page 53

76. Susskind et al, id at page 225

77. Moore, id at pages 52-53.

78. This of course is consistent with the process satisfaction of mediation generally and in employment mediation in particular. See supra, at 11-12.

79. Id at 86

80. Suskind, et at, id at page 220.

81. id at pages 91-92.

82. See e.g., Suskind et al, id at page 213 (noting that by focusing on interests the mediator helps the parties identify the characteristics of the conflict that are important and how, if at all, they may be addressed.)

83. Moore, id at page 187

84. See discussion supra at 10.

85. Moore, id at pages 192-193.

86. Mayer, id at page 201.

87. Moore, id at pages 263-264.

88. Id at page 264-265

89. Id at page 267.

90. Id at page 269.