Human Rights Mediation Program
What is Mediation?
Mediation is a voluntary and confidential process where two parties discuss their issues to reach a negotiated, mutually acceptable agreement to resolve some or all of their issues. It is informal and allows for more open communication, gives parties the opportunity to clear up misunderstandings, find creative solutions and agreements, to, ultimately, incorporate into a written agreement. It is the alternative to the traditional, and many times lengthy, investigative process.
Issues that may be appropriate for mediation through the “Let’s Work Together” program include a variety of interpersonal and communication issues, as well as disputes stemming from allegations of discrimination or “awful” harassment, not based on a protected class, and unfair employment practices.
Benefits of Mediation
Mediation can yield results that are faster and less contentious than a traditional investigation. Mediation is informal and flexible; there are no formal rules for providing evidence and you do not need an attorney to proceed.
Mediations give parties a chance to be heard without interruption; a chance to develop new realistic ways of thinking about a problem; and a chance for the parties to develop their own solutions. In fact, that is one of the greatest benefits of mediation – the parties come together to discuss their dispute, work together to generate ideas for resolving it, and decide together what the solution will be. You make the decision to accept an agreement to resolve your dispute – the mediator does not impose a decision on you. By finding their own solution to the dispute, the parties are more likely to follow through on the agreement.
Mediation sessions are also confidential and private. Therefore, what is discussed during the mediation cannot be revealed to anyone else, including by the mediation, except as required by law. All documentation created during the mediation or in connection with the mediation related to the substance of the issues involved cannot be kept after the mediation ends, including for use in a personnel file. Further, if a settlement is not reached, the parties cannot use what was stated during the mediation against the other party during the investigation.
Mediation promotes better relationships through cooperative problem solving and improved communication. Discussions during a mediation need not only relate to the matter in dispute, but can encompass any other aspect of the parties’ relationship; both facts and feelings are considered. Mediation fosters a problem solving approach to complaints. Even if no violations of policy or law are found during an investigation, the underlying problems may remain, affecting the parties and others in the workforce. Mediations normally address all parties’ interests and often preserve working relationships in ways that would not be possible otherwise. Mediations also often help resolve interpersonal issues that are not necessarily subject to legal determinations. The parties can tailor their settlement to their particular situation.
In approximately 80 percent of the mediations held, the parties reach an agreement.
Who is the mediator and what is their role?
The mediator has extensive training and experience in resolving conflicts. Their role in the mediation is to help the parties develop a satisfactory and realistic resolution to their dispute through communication and problem solving. As such, they are a neutral, fair, impartial individual that guides the parties through the process and has no stake in the outcome of the mediation. The mediator helps the parties talk to each other about the conflict so that each party can better understand why the conflict exists. As the facts and circumstances concerning the dispute are brought into the open, the mediator works with the parties to help discover possible ways the conflict can be resolved.
A mediator may have a lot of legal knowledge and is a subject matter expert. As such, they can evaluate the strengths and weaknesses of the case. However, the mediator does not blame; does not take sides; does not judge who is right or wrong; does not decide if there is a violation of policy or law; or decide what should be done to solve the problem. The parties decide for themselves the outcome of the mediation.
The mediator is there to help you. They will encourage the parties to listen to each other and discuss solutions that will work for both sides. They will recognize and promote common interests beyond the immediate issues of the dispute, to the mutual advantage of the parties. You should feel free to talk to them about your own perspective, however, the mediator will more than likely focus the parties on the future rather than dwell on events of the past that led to the dispute.
What to expect at the mediation session and how to prepare
Mediation begins with all parties present at an open session. The mediator will give an introductory explanation of the process and their role. The mediator will explain the process is confidential and will have each party sign a “Consent to Mediate” form. The parties will then have an opportunity to make statements presenting their case. Afterwards, the parties will separate to individual rooms to a private meeting with the mediator called a caucus. Information shared with the mediator during caucus will not be shared with the other party without the consent of the party providing it. At the caucus, the mediator can explore more fully the facts and issues of each side. The caucus also offers parties the chance to vent anger or frustration outside the presence of the opposing side. The mediator will usually alternate meeting with each party until an agreement is reached. The mediation may be ended upon request at any point by any participant or the mediator and without need for explanation.
The length of the mediation depends on the complexity of the issues and willingness of the parties to resolve the issues. However, most mediations are typically resolved during a one day session. If too much time is necessary to resolve the issues, a continuation may be called for by the mediator.
- Each party should only attend if they come in a good faith effort to listen to each other, be reasonable towards each other, and work together to come to a resolution.
- Each party should have a clear, realistic idea of what they want to achieve during the course of the mediation.
- Each party should have full authority to carry out the action called for in the agreement.
- Each party should bring all relevant documents and evidence that would be helpful for the other party or the mediator to see in order to better understand their side of the dispute.
- Each party should make a list of their case’s strengths and weaknesses.
- Each party should state sufficient information so that each party is clear on the issues.
- Each party should compare possible agreements with the alternatives, consider the costs, time and effort required, effect on your relationships with the other party and other people, and the value of just getting the matter resolved, among other things.
- Each party should keep an open mind, be prepared to listen to the other side, talk openly and honestly about their concerns, and work together to reach an agreement that works for both parties.
If you have an attorney
There is no need to hire an attorney if you are comfortable with attending the mediation on your own. However, if you have already retained an attorney, you should work closely with your attorney to prepare for the mediation. They should help you collect relevant information, develop a negotiation strategy, and consider how to prepare. Advise your attorney of the concerns that need to be addressed in order to resolve the dispute, such as monetary compensation, preserving the relationship with the other party, or receiving an acknowledgement of wrongdoing. Discuss the strengths and weaknesses in your case and the risks involved in proceeding to and investigation or to court, the costs of going through the investigative process or through litigation and whether you are prepared to bear those costs. Working with your attorney will help you have a common understanding of what to expect of each other during the mediation process.
When a resolution is reached
Mediation sessions generally end when the participants come to a resolution. The resolution may be verbal, representing a mutual understanding, or written. When the agreement is in writing, the mediator will assist the participants in drafting the agreement. The agreement will then be signed by all of the parties. HRFEP will confirm consistency with departmental policies and procedures prior to agreeing to sign the written document.
If there is no resolution
There are times when mediation does not result in a resolution of the issues. If a resolution is not achieved, the mediator will declare an impasse. The case will then be returned to the investigative unit and an investigation of the allegations will ensue.
If there is a finding of probable cause
If the Director makes a determination of probable cause in the matter, the case will be referred to conciliation. This process if very similar to that of mediation, except with the knowledge that an investigation by this agency has found probable cause related to some discriminatory action.