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  2. Equal Rights
  3. Equal Rights Process Library
  4. Hearings vs. Mediation

Comparison of Hearings vs. Mediation

Hearing

The Burden of Proof

At an ERD hearing, a complainant must prove the law was violated through witness testimony and other evidence. A respondent must similarly rebut or prove affirmative defenses through testimony and evidence.

Mediation

Remedies Regardless of Fruit

Mediation does not require either party to prove the merits of their case. Parties can disagree as to facts or law and still find an acceptable compromise to their dispute.

A Lengthy Process

It typically takes over six months from when a case is assigned to an administrative law judge to get to hearing. Most hearings take more than one day, and it can take months after the hearing to issue a decision.

A Quicker Process

Most cases assigned to mediation are mediated within a couple of months. Most mediations take less than a day, and settlements are finalized within days or weeks.

A Complex Process

In the months prior to hearing, parties engage in discovery, exhibit preparation, and witness preparation – which can be time-consuming and expensive.

A Simple Process

Mediation does not require witnesses or exhibits.

Limited Outcomes

Damages in ERD hearings are generally limited to back pay (with interest), job reinstatement, and attorney fees and costs.

Potential Outcomes

Although most mediated settlements include some financial compensation, they can also include non-monetary terms, such as job reference letters or changes in an employer's work practices.

All or Nothing

In ERD hearings, an administrative law judge determines whether the law was or was not violated. A complainant is only entitled to damages if a violation of law is proven.

Compromise

Mediation allows for compromise between the parties, and most mediated settlements involve agreed-upon compensation without any finding or admission of wrongdoing.

Public Record

Hearings are open to the public and the news media, and hearing decisions are public records.

Confidentiality

Mediations are not open to the public, and mediated settlement agreements typically contain confidentiality and non-disclosure clauses.