ERD-17095-P (Revised: 11/2011)
The Equal Rights Division (ERD) Early Referral Mediation program was reinstituted in 2011. This means that mediation is now offered at all stages of the civil rights complaint process in the ERD. The Early Referral Mediation program offers the parties the opportunity for earlier, quicker, and less costly resolution of a case.
When a complaint is served, the ERD sends a letter to the respondent requesting a written response to the complaint in writing by a certain date. The ERD has recently modified its service letters to provide that the respondent does not need to file a written response to the complaint if the respondent is interested in participating in mediation. If the respondent indicates a willingness to engage in mediation, the ERD will check with the other party. If both parties are interested in mediation, the case is assigned to an ALJ/Mediator, rather than being assigned for investigation.
The role of the ALJ/Mediator is to facilitate communication between the parties to help them reach a voluntary and mutually agreeable settlement before there has been any investigation or hearing. The ALJ/Mediator schedules the mediation. Each party generally receives location of the mediation for in-person mediations. Mediations may also be conducted by telephone if the parties agree.
Early Referral Mediations are conducted the same way that mediations are conducted at other stages of the ERD process. Some mediation sessions last a short time. Others last a day or more. A typical mediation lasts three to four hours.
A complainant’s offer or a respondent’s counter-offer involves, among other things, an assessment of what the potential remedy will be if discrimination is proven. Remedies may include (but are not necessarily limited to) reinstatement to a job, back pay, interest, attorney’s fees and costs, and other potential remedies. In some cases, compensatory damages (for example, damages for emotional harm) and punitive damages may be available if the litigation were to go forward. A respondent will generally want a non-admission of liability provision and a release of claims to be part of any settlement. The parties may alos agree on a confidentiality or non-disclosure provision.