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Do I need an attorney for an EEOC mediation?

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

In nearly every case, yes, you need your own attorney. The EEOC is not your representative. A mediator for the Equal Employment Opportunity Commission (EEOC) has one client – the United States of America. Some EEOC mediators are great and will do their best to protect you rights even though they are not your advocate. Some EEOC mediators stink and care more about closing the case than they

Because the EEOC has a particular mission and because it is not representing you, if it turns out your interests and those of the EEOC clash, the EEOC mediator will first and foremost make sure the agency’s goals are carried out, not yours.

Also, the EEOC will only consider issues relevant to laws the EEOC enforces, such as discrimination laws. It will not consider such things as employer liability under state law (which in some states, like California, is substantially more than under federal law), wage and hour violations, mutuality in the settlement agreement, circumstances under which you might have to return the money, the language of the settlement agreement (which could have all kinds of "gotchas" that the EEOC doesn't notice or doesn't deal with), and more.

In addition, EEOC mediators most often handle low-value cases because that is what ends up in their offices. They handle high-value cases far less frequently, and even less frequently handle high-value cases where the charging party doesn’t have an attorney. If you show up without an attorney, the mediator may interpret your case as low-value, even if it isn’t. Of course the mediator may learn the value of your case during the mediation, but why start off with such a large obstacle?

Similarly, without an attorney, the employer probably won't take you or your case seriously, and may be able to take advantage of you. No one is watching your back if you don't have your own attorney.

Consider that the employer most likely has an attorney or has consulted with its attorney. Even if the employer doesn't have an attorney, it usually has human resources personnel who have been down this route before and know far better than you do how to use the system to its own advantage.

It is nearly always the case that a charging party will do better overall with an attorney, even taking into consideration the attorney's fees portion of the recovery.

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