§ 10025. Dfeh Mediation Division Services.

(a) The department may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint before investigation commences ( “pre-investigation mediation”). One or both parties to a complaint filed for investigation also may request pre-investigation mediation. Pre-investigation mediation conferences are not attended by any representative of the department's enforcement or legal divisions.

(b) While a pre-investigation complaint is with the mediation division, the requirement to submit a response to the complaint is temporarily suspended. However, if mediation is declined or is unsuccessful, a response shall be provided to the department no later than twenty-one (21) days after the date the department notifies the respondent that a response is due because mediation was declined or was unsuccessful. After the complaint is returned for investigation, the enforcement division shall in writing notify the respondent or, if the respondent is represented, the respondent's attorney, of the exact date the response is due.

(c) The department also may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint after investigation ( “post-investigation mediation”). Post-investigation mediation conferences conducted before an accusation is issued ( “pre-accusation”) shall be 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 post-investigation mediated settlement is reached pre-accusation, the enforcement division representative who participated in the mediation shall not sign the settlement agreement. If a settlement is not reached, and the enforcement division's mediation representative was the investigating office's assigned staff counsel, the legal division shall not assign the same staff counsel to issue and prosecute the accusation in the matter.

(d) Post-investigation mediation conferences conducted after an accusation is issued ( “post-accusation”) shall be attended by the member of the department's legal division who issued the accusation or who has subsequently been assigned the case. If settlement is reached, the legal division representative shall sign the settlement agreement. If settlement is not reached, the same staff counsel who issued the accusation and mediated the matter may prosecute the case.

(e) If, after investigation, the department determines that the complaint is valid and offers the parties mediation, such offer satisfies the department's obligation under Government Code section 12963.7 to “immediately endeavor to eliminate the unlawful ... practice complained of by conference, conciliation, and persuasion,” regardless of whether the mediation occurs before or after the department issues an accusation.

(f) Regardless of whether the department refers a complaint to the mediation division before or after investigation has commenced, the department shall suspend investigation while the complaint is with the mediation division. After mediation is declined or is unsuccessful, the department shall commence, resume or complete the investigation as necessary.

(g) Mediation is voluntary. Therefore, the department shall not assign a complaint to a mediator unless both the complainant and respondent (or their respective attorneys or advocacy organizations, if any) agree to mediate.

(h) When both sides agree to mediate a complaint pre-accusation, the department may assign the complaint to a trained volunteer mediator or a trained mediator employed by the department's mediation division, or refer the complaint to a Fair Employment and Housing Commission administrative law judge or commissioner, based on mediator availability and the department's discretion. Whenever a complainant or respondent is represented by an attorney or advocacy organization, the assigned mediator shall communicate with the party's attorney or advocate regarding scheduling and settlement.

(i) The mediation process is confidential, including, for pre-accusation mediations, any settlement agreement entered into by a complainant and respondent, and the terms thereof. However, the following are not confidential:

(1) issues established as fact during the investigation;

(2) post-accusation settlement agreements and the final terms of settlement; and/or

(3) new facts presented by the respondent at a post-investigation mediation conference that cause the department to re-evaluate the case and determine not to issue an accusation. A respondent providing such information at a mediation conference shall authorize the department to use the information to close the case.

(j) Any written settlement agreement reached through a DFEH mediation division conference may be used as evidence to enforce the terms of the settlement agreement if the conditions of Evidence Code section 1123 are satisfied and the agreement contains language showing the intent of the parties to be bound by the agreement's terms.

(k) A copy of any settlement agreement executed in connection with a DFEH mediation division conference shall be provided to the department's mediation division.

(l) DFEH complaints resolved through mediation shall be closed by the department.

HISTORY

1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).

Note

Note: Authority cited: Section 12930(e), Government Code. Reference: Sections 1119, 1120 and 1123, Evidence Code; and Sections 12930(f) and 12963.7, Government Code.