Return to Home Page<1> NASD Launches New Dispute Resolution Subsidiary,
PR Newswire, (July 17, 2000).
<2> Stay Out of Court - Attorneys Surveyed Recommend
Mediation, PR Newswire, (May 17, 2000).
<3> Qualcomm, Unhappy Employees Try Mediation,
Wirelessweek, 6(19): 16 (2000).
<4> Judge Orders Mediation in Lawsuit Over Joint Venture,"
Crain's Detroit Business, 16(17): 2 (2000).
<5> Center for Dispute Resolution, Mediation (1989);
Administrative Conf. U.S., Implementing the ADR Act: Guidance for
Agency Dispute Resolution Specialists 5 (February 1992).
<6> Ettingoff, C. C. and Powell, G. "Use of Alternative
Dispute Resolution in Employment-Related Disputes," University
of Memphis Law Review, (Spring 1996).
<7> Id.
<8> Kochan, T., Lautsch, B. and Bendersky, C. "An
Evaluation of the Massachusetts Commission Against Discrimination
Alternative Dispute Resolution Program," Harvard Negotiation Law
Review, 233 (Spring 2000).
<9> For example, Phillips, F. P. "Five Good Reasons to
Mediate Employment Disputes," HR Focus, 75(12), (1998);
Petesch, P. and Javits, J. "Mediation's On—Grab A Spoon,"
HR Magazine, 45(4), (2000).
<10> For example, Dunlop, J. T. and Zack, A. M.
Protocols for Employment Dispute Resolution: Mediation and
Arbitration of Employment Disputes, (1997), San Francisco:
Jossey-Bass.
<11>For example, Hodges, A. C. "Mediation and the
Americans With Disabilities Act," Georgia Law Review,
(Winter 1996); Levi, D. L. "The Role of Apology in
Mediation," New York University Law Review, (November
1997).
<12> For example, Brett, J. M., Barsness, Z. I., and
Goldberg, S. B. "The Effectiveness of Mediation: An Independent
Analysis of Cases Handled by Four Major Service Providers,"
Negotiation Journal (July 1996): 259-269.
<13> McDermott, E. P. "An Analysis of the Performance of
Employer Promulgated Workplace Dispute Resolution Procedures
Requiring the Arbitration of Employee Legal Complaints,"
Unpublished Doctoral Dissertation, (1998), Washington, DC: The
George Washington University.
<14> Guthrie and Levin. "A "Party Satisfaction"
Perspective on a Comprehensive Mediation Statute," Ohio State
Journal on Dispute Resolution, 13(3), (1998).
<15> American Bar Association, Section of Labor and
Employment Law, ABA Annual Meeting, July 2000, New York City, N.
Y.
<16> EEOC, "Facts About Mediation,"
http://www.eeoc.gov/mediate/facts.html
<17> Id.
<18> Dannin, E. J. "Contracting Mediation: The Impact of
Different Statutory Regimes," Hofstra Labor and Employment Law
Journal, (Fall 1999).
<19> Hodges, A. C. "Mediation and the Americans With
Disabilities Act," Georgia Law Review, (Winter 1996).
<20> McEwen, C., "Note on Mediation Research." In
Dispute Resolution: Negotiation, Mediation, & Other
Processes, 2<nd> edition, edited by S. B. Goldberg, F.
E. A. Sander, and N. H. Rogers, (1992), Boston: Little Brown.
<21> Brett, J. M. and Goldberg, S. B. "Grievance Mediation
in the Coal Industry: A Field Experiment," Industrial and Labor
Relations Review, 37, (1983), pp. 49-69.
<22> Brett, J. M. Barsness, Z. I. & Goldberg, S. B.
"The Effectiveness of Mediation: An Independent Analysis of Cases
Handled by Four Major Service Providers," Negotiation
Journal, (July 1996), pp. 259-269; Thibaut, J. and Walker, L.
Procedural Justice: A Psychological Analysis, (1975),
Hillsdale, N. J.: Lawrence Earlbaum Associates.
<23> Dunlop, J. T. and Zack, A. M. Protocols for
Employment Dispute Resolution: Mediation and Arbitration of
Employment Disputes, (1997), San Francisco: Jossey-Bass.
<24> EEOC, "Facts About Mediation,"
http://www.eeoc.gov/mediate/facts.html
<25> Smith, W. C. " Much To Do About ADR," ABA
Journal, 86, (June 2000), pp. 62-67.
<26> M. Gordon, "Grievance Systems and Workplace Justice:
Tests of Behavioral Propositions About Procedural and Distributive
Justice," in the Proceedings of the Fortieth Annual Meeting of
the Industrial Relations Research Association held in Chicago
28-30, December 1987, edited by B. D. Dennis (Madison, Wisconsin:
Industrial Relations Research Association, 1988), pp. 390-397.
<27> Brett, J. M., Barsness, Z. I., & Goldberg, S. B.
"The Effectiveness of Mediation: An Independent Analysis of Cases
Handled by Four Major Service Providers," Negotiation
Journal, (July 1996), pp. 259-269; Thibaut, J. and Walker, L.
Procedural Justice: A Psychological Analysis, (1975),
Hillsdale, N. J.: Lawrence Earlbaum Associates.
<28> Hodges, A. C. "Mediation and the Americans With
Disabilities Act," Georgia Law Review, (Winter 1996).
<29> Id.
<30> Dulebohn, J. & Martocchio, J. J. "Employee
Perceptions of the Fairness of Work Group Incentive Plans,"
Journal of Management, 24(4), (1998), pp. 469-489.
<31> Hodges, A. C. "Mediation and the Americans With
Disabilities Act," Georgia Law Review, (Winter 1996).
<32> Id.
<33> Id.
<34> Id.
<35> Id.
<36> Kovach, K. K. Mediation: Principles and
Practice, (1994).
<37> Weckstein, D. T. "In Praise of Party Empowerment -
And Of Mediator Activism," Willamette Law Review,
(Summer 1997).
<38> Hodges, A. C. "Mediation and the Americans With
Disabilities Act," Georgia Law Review, (Winter 1996).
<39> Id.
<40> Weckstein (1997)
<41> Ettingoff, C. C. and Powell, G. "Use of Alternative
Dispute Resolution in Employment-Related Disputes," University
of Memphis Law Review, (Spring 1996).
<42> Please refer to the next section of this literature
review for a comprehensive discussion.
<43> Folger, R. and Greenberg, J. "Procedural Justice: An
Interpretive Analysis of Personnel Systems." In Research in
Personnel and Human Resources Management, volume 3, edited by
K. M. Rowland and G. R. Ferris (Greenwich, Connecticut and London,
England: JAI Press, Inc., 1985), pp. 141-183.
<44> Gordon, M. "Grievance Systems and Workplace Justice:
Tests of Behavioral Propositions About Procedural and Distributive
Justice," in the Proceedings of the Fortieth Annual Meeting of
the Industrial Relations Research Association held in Chicago
28-30, December 1987, edited by B. D. Dennis (Madison, Wisconsin:
Industrial Relations Research Association, 1988), pp. 390-397.
<45> Id.
<46> Folger, R. and Greenberg, J. "Procedural Justice: An
Interpretive Analysis of Personnel Systems." In Research in
Personnel and Human Resources Management, volume 3, edited by
K. M. Rowland and G. R. Ferris (Greenwich, Connecticut and London,
England: JAI Press Inc., 1985), pp. 141-183.
<47> Id. at p. 394.
<48> McEwen, C. An Evaluation of the Equal Employment
Opportunity Commission's Pilot Mediation Program, Washington D.C.,
Center for Dispute Settlement, 1994 (Contract No. 2/011/0168).
<49> Id. at p. 4.
<50> McEwen, C. An Evaluation of the Equal Employment
Opportunity Commission's Pilot Mediation Program, Washington D.C.,
Center for Dispute Settlement, 1994 (Contract No. 2/011/0168).
<51> Id.
<52> Id at p. 5. While both of the studies discussed
herein attempted to compare control group experience with that of
the parties who participated at mediation, these attempts
failed.
<53> Brett, J. M. and Goldberg, S. B. " Grievance
Mediation in the Coal Industry: A Field Experiment," Industrial
and Labor Relations Review, 37, (1983), pp. 49-69.
<54> Kochan, T., Lautsch, B. and Bendersky, C. An
Evaluation of the Massachusetts Commission Against Discrimination
Alternative Dispute Resolution Program, Harvard Negotiation
Review, 233 (Spring 2000).
<55> All discussion of the MCAD program refers to the
program at the time of this study.
<56> Kochan, T., Lautsch, B. and Bendersky, C. An
Evaluation of the Massachusetts Commission Against Discrimination
Alternative Dispute Resolution Program, Harvard Negotiation
Review, 233 (Spring 2000).
<57> Id.
<58> Id.
<59> This low fairness rating is interesting, as it
appears to contradict the satisfaction and other positive process
ratings.
<60> Kochan, T., Lautsch, B. and Bendersky, C. An
Evaluation of the Massachusetts Commission Against Discrimination
Alternative Dispute Resolution Program, Harvard Negotiation
Review, 233 (Spring 2000).
<61> Id.
<62> Id. Here the MCAD authors note that other relevant
studies in this area also had low response rates, citing Kakalik
et. al. (1996) and Brett, Barsness, and Goldberg (1996).
<63> Id., p. 10.
<64> Id. The study does not identify what particular AAA
panels (labor and/or employment law) were used to provide the
neutrals.
<65> Id. For EEOC charges, this would be at the statutory
point where Title VII calls for conciliation of meritorious
charges.
<66> C. McEwen, An Evaluation of the Equal Employment
Opportunity Commission's Pilot Mediation Program. Bowdoin College
(1994), p. 64.
<67> Christovich, L. and Stallworth, L. "The Equal
Opportunity Act and Its Administration: The Claimant's
Perspective," Proceedings of the
38<th>Annual Meeting of the Industrial
Relations Research Association, (1986), pp. 472-477.
<68> Christovich, L. and Stallworth, L. "The Equal
Opportunity Act and Its Administration: The Claimant's
Perspective," Proceedings of the
38<th>Annual Meeting of the Industrial
Relations Research Association, (1986), pp. 472-477.
<69> Id. at p. 472.
<70> Pub. L. 88-352, July 2, 1964; 42 U.S.C. Section
2000(e)-2(a).
<71> Lundberg, K. "Reducing the Complaints Backlog at the
Equal Employment Opportunity Commission," Case C16-00-1562.0,
Kennedy School of Government Case Program, Harvard College, (Spring
2000), p. 1.
<72>Pub. L. 88-352, July 2, 1964; 42 U.S.C. Section
2000(e)-4(g) and 5.
<73> Where an agency investigation finds a charge to have
merit, the agency issues a Notice of Reasonable Cause that Title
VII has been violated. Conciliation is offered after this
determination has been made.
<74> In referring to an EEOC "case," the term "charge" is
sometimes used in place of "case." Also the EEOC refers to pending
charges as "inventory," while we sometimes will use the term
"backlog".
<75>Lundberg, K. "Reducing the Complaints Backlog at the
Equal Employment Opportunity Commission", Case C16-00-1562.0,
Kennedy School of Government Case Program, Harvard College, (Spring
2000), p. 1, citing Priority Charge Handling Task Force/Litigation
Task Force Report, EEOC, March 1998, p. 3.
<76> Recent examples of EEOC pattern and practice cases
include the Texaco and Mitsubishi cases that were
settled for large sums of money.
<77> Most respondents are employers but this group also
includes trade unions, government entities, and employment
agencies.
<78> Pub. L. 90-202, Dec. 15 1967; 29 U.S.C. Sections
621-624.
<79> Pub. L. 88-38, June 10, 1963; 29 U.S.C. Section
206.
<80> Pub. L. 93-112, Sept. 26, 1973; 29 U.S.C. Section
705, 791 et. seq; this law is the precursor to the Americans With
Disabilities Act.
<81>Lundberg, K. "Reducing the Complaints Backlog at the
Equal Employment Opportunity Commission", Case C16-00-1562.0,
Kennedy School of Government Case Program, Harvard College, (Spring
2000), p. 3.
<82> Due to statutory and political reasons beyond the
scope of this paper, when one Chairperson leaves, although an
"acting" chair is named, there is usually a significant period of
time before a permanent successor assumes office.
<83> Priority Charge Handling Task Force /Litigation Task
Force Report, EEOC, March 1998, p. 5.
<84>Lundberg, K. "Reducing the Complaints Backlog at the
Equal Employment Opportunity Commission," Case C16-00-1562.0,
Kennedy School of Government Case Program, Harvard College, (Spring
2000), p. 4.
This contemplated model was similar to the way that the National
Labor Relations Board operated at that time. Some of Thomas' top
management had prior NLRB experience.
<85> Id. Again, this final investigative report was used
by the NLRB for all cases.
<86> Id., p. 5.
<87> Pub. L. 101-336, July 26, 1990; 42 U.S.C.
12101-12117, 12201-12213.
<88> Pub. L. 102-166, Nov. 21, 1991; this law added
amendments to various existing civil rights statutes.
<89> Compensatory damages are for pain and suffering.
Punitive damages are awarded to punish egregious defendant
conduct.
<90> Lundberg, K. "Reducing the Complaints Backlog at the
Equal Employment Opportunity Commission," Case C16-00-1562.0,
Kennedy School of Government Case Program, Harvard College, (Spring
2000), p. 9.
<91> Id., p. 10
<92> Id.
<93> Every office has some system in place to review
charge prioritization systems.
<94> Many of these C cases involve situations where the
EEOC does not have jurisdiction. The classification of these A-B-C
cases was for internal purposes only; the specific designation
assigned to a charge was kept confidential by the EEOC. It should
be noted that this is a general description of the charge
classification process.
<95> The EEOC defines mediation as "a fair and efficient
process to help you to resolve your employment disputes and reach
an agreement. A neutral mediator assists you in reaching a
voluntary, negotiated agreement." EEOC Internet Homepage,
"Mediation," http://www.eeoc.gov/mediate/index.html (June
18, 2000).
<96> McEwen, C. An Evaluation of the Equal Employment
Opportunity Commission's Pilot Mediation Program. Bowdoin College
(1994).
<97> EEOC Office of Field Programs, FY 1997, Year-End
Report (Washington, D.C.)
<98> EEOC Office of Field Programs, FY 1998, Year-End
Report (Washington, D.C.).
<99> Id.
<100> EEOC Internet Homepage, "Ida Castro: Chairwoman,"
http://www.eeoc.gov/castro.html
<101> EEOC, Comprehensive Enforcement Program
Highlights.
<102> Id.
<103> http://www.eeoc.gov/mediate/transcripts.html;
Chairwoman Castro's experience as an employment law litigator in
New York City provides her with a solid understanding of ADR's role
under Title VII.
<104> Harders, J. "Too Good To Last," ABA Journal
(April 2000),pp. 30.
<105> Id.
<106> McGolrick, S. "Agency Needs More Employers in
Mediation, Full Funding of Program, Chairwoman Says," BNA Daily
Labor Report, (May 22, 2000).
<107> EEOC Internet Homepage, "History Of EEOC Mediation
Program," http://www.eeoc.gov/mediate/history.html (June 18,
2000).
<108> EEOC Purchase Order No. 9/0900/7632/G, Statement of
Work, p. 4 (8/18/99).
<109> EEOC Internet Homepage, "History Of EEOC Mediation
Program."
<110> Id.
<111> Id.; A key factor in the EEOC obtaining funding
support from Congress was a letter to various committee
chairpersons from key constituencies served by the EEOC. The Equal
Employment Advisory Council (EEAC), The Labor Association, and
employee advocacy groups, including the Women's Defense Legal Fund,
the National Employment Lawyers Association, the Employment
Litigation Project of the Lawyers Committee for Civil Rights and
Urban Affairs, and the Lawyers' Committee for Civil Rights Under
Law, joined in an April 22, 1996, letter to key members of Congress
urging the reauthorization of the Administrative Dispute Resolution
Act (ADRA) of 1990. The ADRA permits the use of mediators on a
pro-bono basis.
<112> The increased funding for the EEOC mediation program
was a bipartisan effort. Selected Testimony on Future of EEOC for
the House Committee on Education and the Workforce Subcommittee on
Employer-Employee Relations: Testimony of House Speaker Newt
Gingrich Before the House Subcommittee on Employer-Employee
Relations on "The Future Direction of the Equal Employment
Opportunity Commission," March 3, 1998, 1998 Daily Lab. Rep. (BNA)
(Mar. 4), No. 42: E7,E7.
<113> A description of the "A-B-C" classification scheme
is presented on p. 8 of this report.
<114> The EEOC has a charge processing protocol.
<115> EEOC Internet Homepage, "History Of EEOC Mediation
Program," http://www.eeoc.gov/mediate/history.html (June 18,
2000). "Facts About Mediation." According to the EEOC homepage
these advantages include saving time and money in an efficient
process, the benefit of a neutral third party, confidentiality,
settlement agreements obtained in mediation are not an admission of
guilt, and mediation avoids lengthy and unnecessary litigation.
<116> EEOC Internet Homepage, "Questions And Answers About
Mediation," http://www.eeoc.gov/mediate/history.html, p. 1,
(June 18, 2000).
<117> Ashkanasy, N. M. "Rotter's Internal-External Scale:
Confirmatory Factor Analysis and Correlation with Social
Desirability for Alternative Scale Formats," Journal of
Psychology and Social Psychology, 48, (1988), pp.
1328-1341.
<118> The respondent survey is found in the appendix. The
charging party survey is the same except that the word "charging
party" is found in place of "respondent."
<119> Erdos, P.L. Professional Mail Surveys, rev.
ed. (1983).
<120> This concept of getting what one wanted, did not
attempt to ascertain whether the party did not obtain a "target" or
"resistance" point and did not attempt to determine whether or not
the settlement was within the range between these two points.
<121> The results of the first part of this survey
response may give solace to the dispute resolution professional who
has often wondered, in the heat of mediation, whether the parties
even know what they want.
<122> It appears that respondents were suspicious of the
EEOC until they are exposed to the mediation program, at which
point trust appears to have been earned.
<123> Many of the implications are based on the literature
review, which was presented in Section II.
This page was last modified on October 2, 2000.