The EEOC Set to Release Two Reports Comparing Online and In-Person Mediation

The U.S. Equal Employment Opportunity Commission, a federal agency which enforces federal workplace anti-discrimination laws, will release Tuesday two reports on the transition to video mediation from traditional in-person sessions during the course of the pandemic.

The reports’ striking positive view of online ADR points to continued use, post-pandemic.

The EEOC had conducted about 10,000 mediations annually in the past decade–in-person until mid-March 2022, when it transitioned to online dispute resolution due to the Covid-19 outbreak. See “EEOC Mediation Statistics FY 1999 through FY 2020,” at https://bit.ly/38VirmT.

In September 2020, the EEOC commissioned researcher E. Patrick McDermott, a professor of management and legal studies of Franklin P. Perdue School of Business at Salisbury University in Salisbury, Md., with Ruth Obar, a program evaluation scholar based in Manila, Philippines, to conduct an online dispute resolution survey to measure the performance of online mediation against in-person processes.

This survey used the same performance measures employed in previous surveys by the EEOC since 2000 annually to measure participant satisfaction with in-person mediation.

“Our two independent studies of the mediator and participants’ experience in online mediation,  which includes party representatives, leave no doubt that we are seeing the rise of a new and improved model of workplace discrimination mediation,” said McDermott. He added, “Without a playbook, the EEOC mediation program National Coordinator, Stephen Ichniowski,  the District Office ADR Program Managers, and the many program mediators transitioned successfully from in-person to online mediation.  This program’s success and the data should be considered in future dispute resolution design in the courts, administrative agencies, and private models.”

The new releases covering the two studies, “Equal Employment Opportunity Commission Mediators’ Perception of Remote Mediation and Comparisons to In-Person Mediation” and “The Equal Employment Opportunity Commission Mediation Participants Experience in Online Mediation and Comparison to In-Person Mediation,” are expected to be released here Tuesday morning. They indicate that most of the survey participants prefer online mediation over in-person mediation, and that they believe procedural fairness, distributive justice, and access to justice are greater in online mediation. 

Here are the key findings:

• 92% of charging parties and 98% of employers would conduct EEOC online mediation again.
• 86% of charging parties and 94% of employers believe that EEOC’s online mediation procedures are fair.
• 82% of charging parties and 91% of employers regard the overall online mediation as fair.
• 60% of charging parties and 72% of employers are satisfied with the outcome of the online mediation, a rate higher than the same measure taken for in-person mediation previously. 
• Nearly 70% of the participants prefer online mediation to in-person mediation.
• Online mediation affords significantly greater access to justice because employers are more willing to participate in a mediation done online.
• Employers report higher satisfaction across procedural and due process measures in online mediation.

The EEOC’s results echo and confirm the views of many practitioners who find Zoom mediation to be a successful model. 

John M. Noble, a Greensburg, Pa., mediator who reports he had 267 2021 mediations, shared his positive experience with Zoom:

Having conducted 564 remote sessions in the first 26 months of this Covid era, the mid-2020 notion that in-person ADR is still “better” than Zoom is now near non-existent. The non-travel benefits alone have proven life-altering: when the session is over, you are home or in the office; no more hotels or trains, planes and automobiles; no weather/dangerous highway issues; plaintiffs are expressly more comfortable in their own homes; defense representatives markedly increase efficiencies–at no added costs–participating from their home or office work-stations, given the routine in-person session down-time.

The participants and shared documents are “closer” to me on screen than in-person and I hear better with the head-set. Remarkably, while five of the eight insisted-upon in-person sessions I reluctantly conducted in 2020-22 did not settle (two of the cases saw no offers!), I have seen record numbers of settlement dollars accepted remotely­-over $450 million and counting. Frankly, my location has become irrelevant as I now Zoom with people from any time zone and I very thankfully no longer travel 12-20 hours a week. Beyond sold: . . . remote ADR is here to stay!

Colin Rule, chief executive officer of Resourceful Internet Solutions Inc., which owns mediate.com, commented,

Zoom has revolutionized the practice of mediation. Many mediators conducted their first online mediation via Zoom during the pandemic, and now they won’t go back.  Video conference mediation has become the new normal, with face-to-face processes the exception–a complete reversal from pre-2019. 

Zoom-based mediation helps parties be at their best; it allows for more flexible mediation processes (with more breaks), and it’s much greener (with fewer car miles and airline flights).  Parties prefer Zoom for mediation because of the cost and convenience, and studies are showing mediation over Zoom is equally as effective as face-to-face mediations.  Zoom is constantly improving their platform, and video and audio quality are certain to get even better over the coming years.  Zoom may be the gateway to more technological innovations for mediation in the near future.

Other mediators see advantages and disadvantages of online mediation and will use it if needed . . . but do not prefer it.  See, e.g., Robert A. Creo, “The Post Pandemic Compromise: Hybrid Mediation!”, 39 Alternatives to the High Cost of Litigation 111 (July/August 2021)  (available at https://bit.ly/3wQaxmZ).  

The two EEOC reports confirm that online mediation is widely accepted by mediators and participants. Online mediation, which was initially deemed as a temporary fix, is likely to continue to become mainstream at the EEOC even after the pandemic recedes.

Mylene Chan

Mylene Chan, an LLM candidate at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, has covered UNCITRAL’s 54th Session proceedings as a 2021 CPR Summer Intern. MORE