Mediation FAQ’s

What is a mediation?

Mediation is a confidential process where a neutral third party helps complainants and respondents discuss their dispute and reach a mutually acceptable resolution. The mediator does not represent either party and does not impose a decision on the parties. Instead, the mediator helps the parties come to an agreement that ends their dispute.

Who conducts mediations at DFEH?

The DFEH employs a staff of experienced neutrals whose exclusive role at the DFEH is to mediate cases in the Dispute Resolution Division. DFEH’s mediators do not participate in investigations or prosecutions. They have no stake in the outcome of a case. They have no access to case files and do not disclose any information they learn during mediation to the Enforcement or Legal Divisions. Most DFEH mediators are attorneys with litigation experience; some are former administrative law judges or arbitrators. All have undergone extensive mediation training and some are trainers themselves.

Are there different types of mediations at DFEH?

Yes, there are both voluntary and mandatory mediations. Voluntary mediations occur when both parties agree to mediate before DFEH finishes its investigation. Voluntary mediation cannot take place unless both sides agree; DFEH cannot require a party to participate in voluntary mediation if the party does not wish to mediate.

Mandatory mediations occur after DFEH finishes its investigation and determines a complaint has merit. Prior to filing a civil action in court, the law requires DFEH to attempt to bring parties together to resolve their complaint with a Dispute Resolution Division mediator.

Why was my case sent to the Dispute Resolution Division for voluntary mediation?

Sometimes a case is referred to the Dispute Resolution Division because one of the parties requests mediation. Other times a case is referred because it is one of several the Enforcement Division randomly selects each week, to offer parties the opportunity to engage in free, confidential mediation before an investigation starts. Even though your case has been referred, voluntary mediation will not take place unless you and the other side agree to mediate.

Why should I agree to mediate?

Mediation provides parties a cost-effective opportunity to quickly resolve a complaint on their own terms, without going through the investigative process. Advantages of mediation include:

  • It is free.
  • There is no determination of guilt or innocence.
  • The process of mediation is confidential: Mediation discussions will not be revealed to anyone, including DFEH investigative or legal staff.
  • Mediation can improve communication. Both parties can openly discuss their views and share information about the dispute in a confidential, neutral setting.
If an employer, housing provider, or business is willing to participate in mediation, does that mean DFEH found fault?

No. Voluntary mediation is offered before DFEH makes a finding, and provides respondents the opportunity to enter into a no-fault settlement.

Does DFEH represent the employee during mediation?

No. DFEH does not represent the complainant or the respondent at a voluntary mediation.

Should I hire an attorney?

Parties may retain legal representation for mediation, but are not required to do so. Some complainants have an attorney, but most do not. Some respondents have an attorney, but many do not.

How many times can a case be sent to mediation for possible resolution?

If mediation initially is declined or is unsuccessful, the matter may be referred for voluntary mediation again after a response is submitted, if both parties request and agree to mediation. If DFEH determines after investigation that a case has merit, the parties are required to mediate before the Legal Division files a lawsuit.

What if I don’t like the settlement that is proposed?

DFEH mediators do not have the authority to require parties to agree to a settlement they do not like or want. If you do not like a settlement proposal, you may reject it and make a counter offer, if you like.

If a respondent agrees to a settlement, does that mean the respondent is guilty?

Not necessarily. Most DFEH settlements are no-fault settlements. DFEH settlement agreements generally state that they do not constitute an admission of liability or wrongdoing on the part of the respondent.

What information do I need to bring to mediation?

Mediation participants should know the facts related to their complaint. You will have an opportunity to provide the mediator whatever information you feel is relevant to resolving the complaint. If you have relevant documents, you can bring them to mediation. You do not have to share documents with the opposing party at mediation.

Will the mediator have access to all the documents and information I already provided the investigator?

No. Because of the information firewall the DFEH maintains between the Enforcement and Dispute Resolution Divisions, DFEH mediators have no access to DFEH investigative files. All information DFEH mediators learn about a case comes from the mediation participants themselves.

Does the respondent have to prepare a response while a case is in mediation?

No. While a pre-investigation complaint is with the Dispute Resolution Division, all work on the matter by the Enforcement Division ceases and the requirement to submit a response to the complaint is temporarily suspended.

If my case does not settle in mediation, how much time will the respondent have to respond to DFEH?

If mediation is declined or is unsuccessful, a response must be provided to DFEH no later than twenty-one days after the date the Enforcement Division notifies the respondent in writing that a response is due.