THE DFEH DISPUTE RESOLUTION DIVISION How DFEH Mediation Works and Why You Should Try It ! • Presented by the Department of Fair Employment and Housing • www.dfeh.ca.gov
Overview of DFEH Mediation Programs All are cost free! • Housing Mediation Program • Volunteer Employment Mediation Program • Attorney | Mediator Program • All complaint types, regardless of law or protected basis • Voluntary mediation and mandatory dispute resolution
Mediation Confidentiality and Firewall • Everything that transpires during mediation is confidential. (Evidence Code section 1119.) • All participants, including the mediator, sign a confidentiality agreement. • Mediators have no access to DFEH investigative files. • Information the mediators learn about a case comes from the mediation participants.
Attorney | Mediator Program The DFEH’s Attorney | Mediators are trained professionals who are true neutrals. • Hired for the sole purpose of mediating DFEH complaints. • Two former administrative law judges. • One former private arbitrator. • Four with current private mediation practices.
Pathways to Mediation • The Department may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint before investigation commences (“pre-investigation” voluntary mediation). • The Department may also require parties to participate in mandatory dispute resolution when the DFEH has decided to file a civil complaint. (Government Code sections 12965 & 12981.) • One or both parties to a complaint filed for investigation also may request voluntary mediation at any time.
Voluntary Mediation • Primarily pre-investigation, but also available during and sometimes after investigation. • If pre-investigation, not attended by a representative of the Department’s Enforcement or Legal Divisions. • Parties may have counsel if they like, but representation is not required. • Family member or friend may accompany and participate with the complainant. • Any agreement reached is an agreement between the parties and is confidential.
If I Decide to Mediate, When Is My Response Due? • While a pre-investigation complaint is with the Dispute Resolution Division, the requirement to submit a response to the complaint is temporarily suspended. • If mediation is declined or is unsuccessful, a response must be provided to the Department no later than twenty-one days after the date the Department notifies the respondent in writing that a response is due.
Voluntary Post-Investigation Mediation • The Department may offer, or one or both of the parties may request, mediation during or after investigation is complete. • Attended by a DFEH Staff Counsel or Graduate Legal Assistant who represents the Enforcement Division. • If settlement is not reached and the DFEH prosecutes, matter is assigned to a different Staff Counsel to prosecute. • Any agreement reached is an agreement between the parties, which the DFEH does not sign, and is confidential.
Mandatory Dispute Resolution • The Department may also require the parties to participate in cost-free mandatory dispute resolution, post-investigation, after the complaint has been referred to the Legal Division for prosecution. (Government Code sections 12965 & 12981.) • Conducted before a civil complaint is filed. • Attended by a DFEH Staff Counsel who represents the Department’s Legal Division. • If a settlement is not reached, the same DFEH Staff Counsel may be assigned to prosecute the case on behalf of the Department. • Settlements reached are confidential and not signed by the DFEH, unless DFEH elects to settle without relief for the Complainant.
Post Civil Complaint Mediation • Attended by the member of the Department’s Legal Division who filed the civil complaint or who was subsequently assigned the case. • Legal Division representative will sign the settlement agreement, if any, which becomes a public record. • Agreement not confidential and the DFEH may publicize. • If settlement is not reached, same Staff Counsel who filed the civil complaint and participated in the mediation may prosecute the case.
Why Mediate? • Mediate early and often! • Cost free and cost-effective. • In most instances voluntary. • Exit DFEH process more quickly. • Neutral. • Control over outcome. • Confidential process, and in most instances confidential agreement. • Agreements entered into post-civil complaint are public record and the DFEH may publicize. • New DFEH authority to recover attorney fees and costs. (Government Code sections 12965 & 12989.2.)
What Happens in a DFEH Mediation? • How preparation can facilitate resolution at mediation: • Know your case (facts, legal principles, theory of the case, previous settlement attempts, etc.). • Objectively assess damages & potential outcomes. • Objectively identify and anticipate counter-party interests/positions. • Identify any important policy issues for DFEH. • Prepare your client and adjust any unrealistic expectations. • Develop a strategy for negotiation and anticipated problems. • What to give the mediator prior to mediation and when.
Execution of Agreement to Mediate • Sign before or at mediation. • All parties must sign. • The mediator and interpreter, if present, also sign. • Confidentiality is key!
Mediator’s Opening Statement • Mediators have different approaches. • Statement generally covers: • Introductions. • Explanation of mediation process. • Confidentiality. • Rules of the road. • Some common problems or expectations. • How mediation will conclude after agreement or impasse.
Joint vs. Separate Meetings During Mediation • Common approach in DFEH mediations. • Reasons for unique situations.
Caucuses • Role of the mediator. • Content of discussion. • Confidentiality in a caucus. • Offers and counteroffers.
Reaching Agreement or Impasse • Executing Settlement Agreement • Other Forms.
Questions? Thank you for participating! firstname.lastname@example.org (800) 884-1684 www.dfeh.ca.gov DFEH YouTube, Facebook, Twitter and LinkedIn