* Also get the IMPORTANT tips in UcL Curt's Podcast #6 on severance packages negotiations *
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This guide is designed for Charging Parties who will attend an Equal Employment Opportunity Commission (EEOC)-sponsored mediation of an employment discrimination charge. If you are unable to find a lawyer to represent you at your mediation, you may find this guide to be of assistance in representing yourself. However, this guide is not legal advice and no warranties are made to you in this document. This guide is not a substitute for an attorney's advice.
1 - The Procedure
2 - Preparing for Your Case
3 - ** Valuing Your Case
1 - The Procedure
Mediation is a voluntary process. No one, not even the mediator, can force you to accept a settlement of your charge. However, the mediator can help you clarify your goals in bringing your charge, and can help you and your employer find a compromise solution to your employment problem.
You should not view the mediation as a place where you have to convince the employer, or the mediator, that you were treated wrongly. It is not the mediator's job to decide what really happened to you, or whether you were discriminated against or who is telling the truth. The mediator will not make any decision as to your case. Instead, the mediator will help you and your employer talk to each other and to see "both sides of the story."
It is unlikely that you will ever convince your employer that he or she wronged you.
You should consider bringing a trusted friend or relative with you to the mediation. It can be helpful to have a source of support with you, even if she or he is not a lawyer. That person can help you come up with sensible ways of responding to developments in the mediation. The employer will usually not object to you bringing a support person to the mediation, unless it is a co-worker or someone else who has a complaint against the company.
The mediation usually begins with all parties – you, the mediator, the employer's representative (usually a lawyer or someone from Human Resources) – in the same room. You may not see your supervisor at the mediation; sometimes employers prefer to send someone without a personal involvement in the facts underlying the mediation. Don't be offended if your supervisor does not attend the mediation.
The mediator will introduce herself or himself, get everyone relaxed, and ask you if you would like to make a statement on your behalf. The mediator will know almost nothing about you, your job, your employer and what happened to you, so you should be prepared to educate the mediator. To that end, you should prepare a brief statement (no more than 5 minutes) explaining:
The nature of your job and your credentials
The quality of your work for your employer
The nature of how you were wronged, and
Your willingness to listen to the other side
In this opening statement, it is advisable that you not make a demand for money. That will come later. After you have completed your statement, the employer may also make a statement. You should listen carefully to your employer's statement. Resist the temptation to interrupt. Just take notes. Some things you hear may be incorrect. You can notify the mediator of this later. It is important for you to learn everything you can about why the employer treated you the way it did so that you can respond later.
After both sides make their statements, you can ask the mediator to "caucus," or meet, with you privately. In this private session, you should notify the mediator of any important, incorrect statements the employer made in its opening remarks. You must also explain to the mediator what you would like to get out of the mediation. Depending on the case, there are a number of reasonable goals: compensation for lost wages or for emotional or physical injuries, reinstatement to your previous job, a favorable letter of recommendation (written at the mediation), an agreement that the employer not contest your application for unemployment compensation, a request that unfavorable entries in your personnel file be expunged, an accommodation for a disability or other possibilities. Many mediations come down to a request for money, so you need to think about the value of your discrimination case (discussed further below), not how much money you might need in general.
After you and the mediator agree on a reasonable request to make of the employer, the mediator will caucus for a while with the employer. When that caucus is completed, the mediator will return to you privately and present the employer's counteroffer. This process will continue until the two sides reach an agreement, if one is possible. At that time, the mediator will put the agreement in writing and both sides are expected to sign it. The terms of the agreement will remain confidential. All parties will also be bound to keep confidential all statements made during the mediation.
2 - Preparing for Your Case
First, you should try to obtain a copy of your personnel file from your employer well in advance of the mediation. Your file will inform you how your employer views your employment and may also support your discrimination claims. To get your file, send your employer a written request for your complete personnel file, offer to pay for copy costs, and tell your employer that you plan to pick up the file by a certain date, at least one week later. Here is some sample language you might use for your letter:
I write to request my complete personnel file under the Illinois Personnel Records Review Act. The Act entitles a worker to his or her personnel file within seven working days of a written request. Please send the file to me by (date). I am happy to pay copy costs.
Next, do you know what reason the employer gave for its employment decision? For example, if you were fired, did your employer say why? If not, take a good look through your personnel file. You can often anticipate your employer's explanation from your personnel file. Are there other workers who were not fired although they had the same (or worse) performance issues? Try to identify those employees who are "similarly situated" to you. That is, employees who are in a similar position and have the same type of performance record as yours, but who have been treated more favorably than you. If you are bringing a case of race discrimination, you will need to identify any employees who are similar to you except for race. If you have a sex discrimination charge, you need to identify those employees similar to you in all significant respects except for gender. The same logic applies to a national origin, age or religious discrimination case. If you have an age discrimination case, you are potentially protected if you are 40 years old or older and you were treated less favorably than some similarly situated employee who is "substantially younger." This generally means more than 10 years younger than you.
For disability discrimination cases, make sure you can establish that you are a qualified employee (this means an employee who can perform all the "essential elements" of your job, with or without a reasonable accommodation). To identify the essential elements of your job, get a copy of your job description. You also must have a "disability." A disability is a condition that substantially impairs a major life activity (like walking, breathing, running, driving or working), or a condition which your employer believes impairs those activities, even though you may not actually be impaired. If you are a qualified employee who is disabled or perceived to be disabled, your employer must take steps to provide you with a reasonable accommodation to allow you to work (as long as it is not unduly burdensome for the employer) and may not treat you more harshly than non-disabled employees.
If you are bringing a case of harassment (e.g., sexual, racial, religious or disability), bring any records of any complaints that you made to your employer and a copy of the employer’s anti-harassment policy, if you have one. Make sure to be specific in your description of the harassment and be prepared to identify anyone who was a witness to the harassment.
Bring any documents that support your discrimination claims, and be prepared to identify witnesses.
Be prepared to answer questions about your case, such as "you say X. Your employer says the opposite. How will you convince the judge that you are telling the truth?", "What are the strengths and weaknesses of your case?", "What are your damages?".
3 ******* Valuing Your Case
The most important – and most difficult – aspect of mediation is valuing your case. If you have come this far, you undoubtedly believe that your case is strong. But to know whether you should accept a settlement, you need to know how to value your case: you need to compare your employer's mediation offer with the amount you could win in court, if you were to spend many years litigating your case and if you won.
It is difficult in a guide like this to give a precise formula for valuing your case. However, there are general principles that you may find helpful. If you have been terminated, calculate how much money you would have earned up to the date of the mediation had you not been terminated. That is called your "back pay." For example, if you were fired in April 1, 2001, filed your charge of discrimination on June 1, 2001, and your mediation is set for September 1, 2001, figure out how much money you would have earned between April 1 and September 1. You should bear in mind, though, that back pay usually cannot reach further back in time than 300 days before you filed your charge. In other words, you usually cannot obtain back pay stretching more than 300 days before you filed your charge.
Next, if you were terminated, calculate how long you expect to remain unemployed while looking for another job. You may be entitled to "front pay" for this additional period of unemployment. Estimating the future period of unemployment is difficult and controversial. Most employees anticipate it may take up to six months to find suitable, new work. Some older employees may believe they will never be hired again. (Be sure to keep any records of your job search until your case has been resolved.) Employers contend that you should be able to find work immediately if you are qualified. Courts will only allow you "front pay" for a reasonable period of time – that is, the time it takes for you, acting with diligence, to find another suitable job. At the mediation, it will probably be difficult to obtain a front pay award because your employer may argue that if you land a new job, say, one week after the settlement, any additional front pay would be a windfall. As with all issues, you need to be willing to compromise if you want to resolve your case in mediation.
If you are still working at the job but you want to leave your job, you can negotiate a severance in the mediation. The back and front pay part of your severance might be based on your estimate of how long you would expect to be unemployed and what you would have earned during that time at your current job.
If you are a victim of sexual, racial or some other type of harassment and you sustained emotional injuries, calculate what your out-of-pocket medical expenses have been. You can be reimbursed for these in court. You can also be reimbursed for your recoverable emotional injuries and distress. It is very difficult to predict what you might be able to recover in court for emotional distress. Generally, depending on the case, these damages can range from $5,000 to over $100,000 depending on the length of time you experienced harassment, its severity, the employer's awareness of the problem, the employer’s refusal to correct it, and how much genuine distress you suffered. In many cases, emotional distress awards are in the $10,000 to $30,000 range. Sometimes, courts will award a plaintiff an amount equal to one or two times a plaintiff's back and front pay for these or similar damages.
Add all of these items of damages together (there may be others). You should then multiply this by how likely it is that you will win. No case is a 100% sure winner. Many cases have somewhere between a 20% and 80% chance of winning. Be realistic. If, for example, your itemized damages are $12,000 and you estimate you have a 50% chance of winning, your case can be valued at $6,000.
You should also consider the "present value" of money. To win the $6,000 in court, you would need to litigate your case for several years. Most people would gladly accept $4,500 today, rather than $6,000 in four years. Therefore, in this case, $4,500 might be a reasonable settlement value today.
To continue with the $4,500 example, if you decide that you would accept a settlement of $4,500, it would be reasonable to ask for $9,000 as an opening demand, in hopes of ending up at $4,500 or slightly higher.
To determine your chances of winning, you must take into account everything that has been presented at the mediation: how believable your story is compared to the employer's, whether either side has independent support (in documents or witnesses) for their point of view. No case is a sure winner. You need a pretty strong case to give yourself a more than 70% chance of winning, considering how difficult things can be when you go to court.
Ending the Mediation
A mediation which results in a settlement does not make anyone completely happy. A settlement is supposed to be a compromise; that is why it is called a settlement. However, if you are thoroughly dissatisfied with the mediation and any offers that the employer has made to you, you have the right to request that the mediation end and that your case move to the investigation phase, where an EEOC investigator will look into your charges. This investigation usually lasts for months. After the investigation is over, you will have the right to go to court, although you will probably need to get a lawyer at that point. It can be very difficult to find an attorney who will handle employment discrimination case on a contingency fee basis. Going to court may take at least two and possible five or more years. This is a lengthy and costly process for many people. Even if you win at the end, the amount you win may seem like too little, too late. In other words, just because a settlement offer is not perfect is no reason to think that a court will necessarily provide you any better remedy.
If your case settles, the EEOC will draft up a settlement agreement that you will have a chance to review for accuracy before you sign. The employer may also ask you to sign a "release" that is typically designed to ensure that you cannot sue the employer again for the kind of claims you made in your EEOC charge. This is not unusual. If the employer asks you to sign a release, you should ask that the release not include claims that you may make for unemployment compensation, under an employee benefits plan, or for worker's compensation. The employer may not agree to this, but it is something you should explore. You should feel free to ask the employer to explain to you every term of the release. The employer's attorney has a duty to be truthful in speaking with you about this document.
Good luck!
SOURCE: http://www.illinoislegalaid.org/index.c ... entID=5346
