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! contact.center@dfeh.ca.gov (800) 884-1684 www.dfeh.ca.gov DFEH YouTube, Facebook, Twitter and LinkedIn