How DFEH Mediation Works and Why You Should Try It

introducing

THE DFEH MEDIATION DIVISION

Presented by

Annmarie Billotti | DFEH Chief Deputy Director and Jo Anne Frankfurt | DFEH Supervising Mediator & Retired FEHC ALJ

Housing Mediation Program

Volunteer (Employment) Mediator Program

DFEH-Loyola Law School Center for Conflict Resolution (DFEH-Loyola) Mediation Program

Staff Counsel-Mediator Program

Overview of DFEH Mediation Programs

The DFEH’s Staff Counsel-Mediators are trained professionals who are true neutrals:

Each has been hired for the sole purpose of mediating complaints. Two have their own private mediation practices. One is former FEHC administrative law judge.One is a former private arbitrator.

Staff Counsel Mediator Program

The Department may offer the parties to a complaint filed forinvestigation the opportunity to mediate the complaint before investigation commences (“pre-investigation mediation”).

One or both parties to a complaintfiled for investigation also may request pre-investigation mediation.

Pathways to DFEH Mediation

Pre-Investigation Mediation

• Pre-investigation mediation conferences are 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.• A family member or friend may accompany and participate

with the complainant.

While a pre-investigation complaint is with the Mediation 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 that a response is due because mediation was declined or

was unsuccessful.

IF I DECIDE TO MEDIATE, WHEN IS MY RESPONSE DUE?

The Department also may offer the parties the opportunity to mediate the complaint after investigation (“post-investigation mediation”). Post-investigation mediation conferences conducted before an accusation is issued are attended by a representative of the Department’s Enforcement Division. The Enforcement Division representative may be the investigating office’s assigned staff counsel. If a settlement is not reached, the Legal Division will not assign the same staff counselto issue and prosecute the accusation.

POST-INVESTIGATION, PRE-ACCUSATION MEDIATION …

Post-investigation mediation conferences conducted after an accusation is issued (“post-accusation”) are attended by the member of the Department’s Legal Division who issued the accusation or who was subsequently assigned the case. If settlement is reached, the Legal Division representative will sign the settlement agreement. If settlement is not reached, the same staff counsel who issued the accusation and participated in the mediation may prosecute the case.

Post-Accusation Mediation

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).

– Develop a strategy for negotiation and anticipated problems.

– What to give the mediator prior to mediation and when to get this to

the mediator.

•Form all parties sign.

• Process is voluntary.

•Confidentiality is key!

Execution of Agreement to Mediate

?Opening Statement by Mediator

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 at DFEF. 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 and Other Forms.

Why Mediate?

• Voluntary.• Cost-free and cost effective.• Exit DFEH process more quickly.• Neutral.• Control over outcome. • Confidential process and in most instances

confidential agreement.

Thank you for participating!

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

Thank you for participating!