We frequently receive calls from persons trying to figure out whether they should agree to mediate their discrimination or sexual harassment claims at the EEOC or the Maryland Commission for Human Relations. My answer is always the same. Yes. Because you have nothing to lose by doing so, and you may be able to resolve your case, instead of waiting at least six to twelve months for the EEOC or MCHR to conduct their investigation.
Of course, if you are not going to be reasonable and expect to obtain a million dollars or even one-hundred thousand dollars, your case is unlikely to settle. However, if you are willing to settle if you can obtain your lost wages and perhaps some additional compensation for attorneys’ fees or emotional distress, then you have a real shot of settling the case, as long as your employer is also willing to be reasonable. In my recent experience, we have settled nearly 80% of our mediations, in amounts ranging from approximately $7,500 to $75,000, depending on the extent of the damages and the strength of the case.
Some attorneys don’t like for their clients to participate in mediation because they believe that they are providing “free discovery” to the employer, effectively tipping their hand before litigation has even started. In my view, that is not a real issue, because you will have to provide that information to the employer in the discovery process anyway, so you are not giving the employer any unfair advantage if the case does not settle.
Should you bring an attorney to the mediation? Absolutely. Because otherwise, you simply don’t have the necessary experience to value your case and to negotiate the best possible settlement. You also will not have familiarity with the law and, possibly, with the mediators and opposing counsel. Finally, it is advantageous to have someone to provide emotional support when dealing with such a tense and emotional event.