Speaker 1: Employment disputes end in three ways. In a complete victory for the employee. This is typically due to a court verdict and is quite rare. In a complete victory for the employer. This is frequently due to an employee's decision to stop pursuing the matter and is quite common. Through compromise, where nobody wins. Or maybe everyone wins. In this video, I'll discuss how to resolve your complaint through arbitration, mediation, and settlement. Arbitration Even if you win big at trial, you could wait many years before receiving compensation or lose on appeal. Employers settle because they fear losing too. Lawsuits are expensive and discrimination complaints can be bad for business. The vast majority of employers, when faced with a strong case where there is a real possibility of losing big, will make a reasonable settlement offer eventually. While there is sacrifice in settlement, there is also triumph. And the more your employer pays, the greater the victory. Discussions regarding settlement can occur when you initially discuss the discrimination with the decision maker and any time thereafter. Negotiations during an internal complaint process are delicate because you want to appear reasonable, but you also have very little flexibility to negotiate. If your employer does make an offer, you want to make a counteroffer that appears reasonable, but you also want to ask for more than you need to be satisfied because opening offers are rarely accepted. For example, if you complain about a promotion and your employer promises you a promotion next time, you could counter by saying you would really prefer a promotion now and a transfer. Perhaps you could get the transfer and priority consideration for the next promotion. Once you have made an external complaint, your options for settlement expand to include money. For small settlements, the nuisance of defending the case, such as the cost of employer's attorney's fees, can prompt your employer to settle for a few hundred or possibly a few thousand dollars. To settle for more than that, your employer needs to be concerned that you might sue. Settlement discussions usually commence with a demand letter sent to the employer. This letter details the discriminatory events, the harm you experienced, and includes a demand for damages. Employees without attorneys pose little or no threat of a lawsuit. If you don't have an attorney and want your employer to take you more seriously, convince an attorney to write a letter on your behalf. You can also ask an attorney to represent you solely for the purpose of settlement. Your initial settlement offer should always start high. A general guideline is the initial offer should be about two or three times the amount of your bottom line. Complaintants are often reluctant to start high because the proposed amount does not seem fair and out of concern that the employer will be driven away by an opening offer it perceives to be unreasonable. Just remember that your employer expects your initial offer to be high. In fact, your employer may devalue its estimation of your case if your initial offer is less than expected. Even if you start with a reasonable offer, your employer will likely tell you that your demands are too high and argue you're not really serious about trying to resolve the matter. The truth is, an employer wanting to settle will usually provide a counteroffer even if it believes the initial offer was outrageous. A lack of a counteroffer does not mean your demand letter was ineffective. It could just be that your employer is merely waiting for another form later in the process before it begins engaging in settlement discussions, like an EEOC mediation or court-mandated pre-trial settlement conference. After an initial offer and counteroffer are presented, settlement discussions typically progress with much exaggeration. Both sides emphasize the strength of their cases and minimize the cases of their opponents. You will try to determine what the maximum amount your employer will settle for, and your employer will try to determine the minimum you will settle for. Holding out for a higher offer is risky, but can reap higher rewards. Complaintants inexperienced in settlement discussions are much more likely to fold first. An employer becomes more likely to increase the amount it will offer in settlement as the likelihood of a lawsuit increases or as a trial date approaches. Good discrimination cases often settle before trial because neither side wants the risks associated with a trial. Alternative Dispute Resolution, or ADR, refers to methods to resolve a claim other than through a legal proceeding. The key difference between ADR and other settlement discussions is that in ADR there is a neutral party who assists the two sides to resolve the dispute. The chief techniques are mediation, arbitration, and mandatory arbitration. There is also a less common method available in some workplaces called peer review. It may be worth hiring an attorney to assist you when participating in a mediation or arbitration because without an attorney, an employer or arbitrator is less likely to take your claim seriously. EEOC mediators understand that most employees cannot afford an attorney, even for a day. Attorneys will typically represent you for a portion of your settlement in a mediation or arbitration. You could also propose to pay an attorney the lesser of their hourly rate or a portion of your settlement if the case settles. I'll provide more information about hiring an attorney in my next video. If you do not believe your case is strong enough to justify the expense of an attorney, bring an advocate to assist you during a mediation or arbitration, such as a union representative or friend. In a mediation, a neutral third party works with the employer and the complainant to try to resolve the case by crafting an agreement to which both parties can agree on. Mediation can occur at different times, including after filing at the EEOC but prior to an investigation. The form the mediation takes is up to the mediator. Some mediations start with both parties in the same room, with each side making some form of opening remarks. In some mediations, the parties are kept separate and never interact. Typically, over the course of a mediation, a mediator will meet with each party separately several times. During those meetings, the mediator will seek to understand what each party needs to resolve the matter. Good mediators are personable and persuasive. The mediator's chief role is to encourage, cajole, and even browbeat each side to increase or decrease what they are willing to offer or accept to try to forge a compromise between the parties. When preparing for a mediation, consider what you would like your initial offer to be and decide what is the least you would be willing to accept. Be prepared to take the next step to pursue your complaint if you do not receive your bottom line. I've taught advanced negotiation techniques to many college students and federal investigators at the EEOC. Here are a few you should be aware of when participating in a mediation. A mediation will typically have opening offers and interim offers, but the success or failure of most mediations occur in the last hour. Parties really only demonstrate how flexible they are willing to be when it is clear that there is no time left for further negotiation. For that reason, try to stay open during the process. Even if the first offer you received is for very little, this is not necessarily an indication of what the final offer of the day will be. Ignore a red herring where a lot of attention is placed on a minor issue, like a letter of recommendation, to try to force a concession on a larger issue. The best response is to suggest putting the issue aside and returning to it later. Another technique is limited authority, where the employer says they do not have the authority to agree to a particular proposal or pass a certain dollar amount. Respond by asking if they will recommend the proposal, and if not, why not? Encourage them to get the party with authority on the phone or to come join the mediation. When negotiating, don't offer to split the difference. This invites the other party to negotiate down from the difference amount you just proposed. Instead, you can ask the mediator to ask the other party whether they would be willing to split the difference, and tell the mediator confidentially that if the other party agrees to do so, you will as well. Be sure that any agreement you reach settles all issues you are concerned about. For example, you do not want to find yourself in a situation where you have agreed on a financial amount you are happy with, but no decision on whether the firm will provide you with a positive letter of reference. You may find yourself later forced into a situation where you have to accept the worst-case scenario on any outstanding issue or to walk away from the entire deal. Arbitration is a court-like proceeding in which a mediator serves as the judge. There are opening arguments, each side presents evidence. Although similar to a trial, an arbitration is much less formal and is completed much more quickly. One key difference is that the information an employer is required to provide is much more limited. At the conclusion of the arbitration, the arbitrator issues an award. If both parties agree with the award, the case is settled. If not, the case can still be pursued in court. Arbitration is usually attempted after a lawsuit is filed as a way of trying to reach a resolution before trial. A mandatory arbitration agreement is a common condition of employment. Most private sector non-union employees are subject to mandatory arbitration agreements. These agreements can even include class-action waivers, preventing you from being able to band together with coworkers to sue in court. Sexual harassment claims cannot be forced into arbitration. Mandatory arbitration differs from arbitration in a few key ways. First, you do not have the option of filing in court. Also, the decision of the arbitrator is binding on both parties. Results of an arbitration cannot be appealed. Complaintants win less often and receive much lower damages in mandatory arbitration than in court. This is because mandatory arbitration agreements give some employers more latitude to select pro-employer arbitrators, and arbitrators who are hired by the same employer multiple times are much more likely to rule in favor of the employer. Some employees have had success with having their mandatory arbitration agreements voided because they were unconscionable. You'll need an attorney if you want to challenge the legitimacy of your mandatory arbitration agreement. One key question in determining whether an arbitration agreement is unconscionable depends on how the arbitration agreement was formed, such as whether the employee was given a chance to review and consider the agreement, and whether the mandatory arbitration agreement was hidden in fine print. Other concerns include whether the agreement eliminates some claims or remedies that an employee would have in the courts, and one-sided agreements or a biased method of selecting the arbitrator favors the employer. Peer review is a less common ADR method where the employee brings the dispute to a group of employees and managers who have volunteered to help resolve conflicts. The panel members typically ask questions and propose a solution. Their decision is not binding on the employee. Peer review is typically used early in the dispute process, often before an employee has filed a formal complaint. If you and your employer agree on settlement terms, the employer will send you a settlement agreement. Generally, this agreement will require you to release the employer from all legal claims. Several clauses are commonly found in these releases. Employers often insist on no admission of wrongdoing to avoid future legal problems and refuse to settle without it. A confidentiality clause restricts you from speaking about the provisions of the settlement agreement. You may be reluctant to agree to this clause because the knowledge of the amount your employer was willing to agree to may be helpful to other individuals in the future. For exactly that reason, employers usually want this clause. An employer cannot require you to waive your right to participate in an EEOC investigation. At times, an agreement states that a sum of money must be paid if the agreement is violated. These provisions are usually included to intimidate a complainant into complying with the agreement. If the amount is inappropriately high, this clause may be invalid. You can always ask for changes to the agreement. For example, you should request the removal of all references to releasing your employer of future claims for future actions. You may want a clause that restricts your employer from speaking poorly about you or makes your employer also subject to the provisions of the confidentiality clause. Even though the settlement agreement is unlikely to be perfect, you may still want to sign it. Agreements do not have to be in writing to be valid. Oral settlement agreements can be binding on an employer, although enforcing these agreements is much more difficult. When employees are laid off, terminated, or offered early retirement, an employer can offer money to waive their rights to file suit against the employer. The agreement presented to an employee is usually a general release that waives the employee's rights to file suit under the anti-discrimination laws and all other employment laws. To legally waive your right to file a discrimination lawsuit, you must sign the waiver knowingly and voluntarily. The factors courts consider in determining whether a waiver was signed knowingly and voluntarily are listed here. If you are 40 years or older and waiving your ADEA rights, the Older Workers Benefit Protection Act establishes additional standards for the signing of a waiver to be knowing and voluntary. The criteria required by this act for waivers referring to the ADEA are in italics. Waivers have special requirements when given to groups that include employees who are 40 years or older, like due to a reduction in force or a mass layoff. Each employee must be given 45 days to consider the waiver and must be clearly notified that a group of employees is being separated. An employer must provide the additional information to each employee listed here. This information can help you determine whether age bias is motivating the buyout, so you can make an informed decision. If your employer fails to provide this information, the waiver is invalid because you lack sufficient knowledge to make an informed decision when signing. An invalid waiver does not restrict you from exercising your right to file a lawsuit. One final thought about settling your case. Saving receipts is important, but don't let damage calculations and settlement negotiations become all-consuming. A legitimate reason to settle your case for a lower amount is so that you can resolve the matter and move on. Fighting the case for years might not be worth the extra money. Thanks for tuning in. you