Michael M. Shultz
Kansas employees who file employment discrimination claims with either the Kansas Human Rights Commission or the Equal Employment Opportunity Commission will be asked if they want to go to mediation. Most Kansas employment law attorneys will recommend mediation to their clients. Mediation is a process where the employee and his or her attorney, the employer and its attorney, and a neutral person (the mediator) meet to try to resolve the dispute between the parties. This is a legal process where you will be asked to give up all of your legal rights if you want to settle your claims. Therefore, it is important to have a competent Kansas employment attorney work with you.
If your employment lawyer files your charge of discrimination with the EEOC, the charge will be referred to mediation–meaning that it will be sent to one of the mediators who is an EEOC employee. These employees are kept separate from the investigation process and are neutrals even though they work for the EEOC. It is the mediators first job to contact the employee (charging party) and the employer (the respondent) to determine if both sides want to mediate. Mediation is voluntary and only around half of all employers elect to mediate. If the employment lawyer files the charge with the KHRC, the charge will be referred to outside mediators who work under contract with the Kansas agency.
If both sides agree to mediation, then a date is set for the mediation. In Kansas, it is the usual practice that only the employee and his attorney, the employer and its attorney and the mediator meet. This is considered a private proceeding. The key aspect of mediation is that everything is confidential and nothing that is said can be used against either party later. The goal of mediation is to create an open and informal process so that an early resolution of the employment discrimination issue can occur.
The mediator typically has a joint session where all parties meet together. Normally, the employee's attorney and the employer's attorney make brief opening statements. This is especially important here because the two sides might not know a lot about each other's positions. After this opening session, the mediator will meet individually with each side in what is called a "caucus." The mediator usually meets first with the employee and her attorney to find out more about the case and to get a demand for settlement. The employment attorney must make a careful evaluation of the "worth" of the client's case. If the client is still employed, the mediation might only be about being protected from harassment or getting a promotion. If the client has been terminated or was not hired, then the mediation will often be about reinstatement, or more often, about the amount of money to compensate the employee.
After meeting with the employee, the mediator will then meet with the employer and get its take on the case and get a counter offer for settlement. The mediator then spends the next several hours going back and forth between the employee and employer. If the parties are just too far apart for settlement, the mediation might end quickly. Other times, it might take the better part of a day for the parties to reach an agreement. Sometimes, even after hours of effort, there will be no agreement. At this time, the mediator declares an impasses and the mediation ends. Once the mediation ends, the matter goes on to enforcement for investigation.
If the parties are able to settle, there will be written summary of the agreement. It is critical that the Kansas employment attorney get an agreement in writing before leaving, even if a more formal typed agreement will be done later.