Mediation is a form of alternative dispute resolution offered by the Michigan Department of Civil Rights (MDCR) as an option in the complaint resolution process. Mediation is an informal process in which opposing parties may negotiate a voluntary resolution of their dispute with the help of a neutral person (mediator). Please see this Mediation Option brochure.
How MDCR's Mediation Program Works
When MDCR determines a complaint may be appropriate for mediation, claimant and respondent are offered the option to mediate. Typically the offer to mediate is included when both parties are mailed the Notice of Formal Complaint. The decision to mediate is completely voluntary and must be agreed to by both parties. When the parties agree to mediate, the investigation is postponed to allow reasonable time for mediation to take place. When mediation results in a settlement or withdrawal of the complaint, no further action is taken by MDCR. If the complaint is not resolved at mediation, the complaint is investigated like any other complaint.
Mediation is generally available any time after a formal complaint has been taken. Mediation is now available statewide.
Role of Mediator
Mediators do not make any decisions as to the outcome of a complaint. The only role of the mediator is to facilitate discussion in an attempt to resolve the complaint. Settlement is voluntary and only occurs when both claimant and respondent reach a settlement that both parties are willing to sign.
Representation
Claimants and respondents may have representation at mediation, including but not limited to an attorney. MDCR does not provide representation for claimants or respondents. Mediators do not act as an advocate or offer legal advice to any party.
Confidentiality
All mediation participants must sign a confidentiality agreement at the start of mediation. The confidentiality agreement outlines the terms in which they are agreeing to participate in mediation. The key features of the confidentiality agreement include:
1. Parties understand that mediation is voluntary and that they can withdraw from the mediation at any time.
2. Parties understand that the mediator has no power to decide who wins or loses the case and that the mediator is going to try to help parties reach their own resolution of the complaint.
3. Parties understand that the mediator is not going to act as an advocate or offer legal advice.
4. Parties understand that they may have an attorney or representative assist them in mediation.
5. Parties agree that the purpose of mediation is to settle the complaint.
6. Parties agree not to subpoena the mediator or any observer to testify about what was said in mediation and the mediator agrees not to willingly testify or report anything said or done in mediation unless one of the participants makes a genuine threat of physical harm or commits physical harm.
7. Parties understand that any documents prepared for or during mediation are for settlement purposes only and may not be subpoenaed for, or used in, an administrative hearing or trial unless otherwise discoverable.
8. Parties understand that participants are not bound by anything said or done in mediation unless and until there is a written agreement to do so.
9. Parties understand that they may reach a confidential agreement that may or may not be submitted to MDCR. If an agreement is kept confidential from MDCR, the claimant must sign a withdrawal form to close the complaint.
Why Mediate?
1. Mediation saves time. An investigation, hearing, or court case can take a long time. Most mediations take place in less than 30 days.
2. Mediation saves money. Although an attorney is not required, through the course of the investigation both parties may want legal assistance. Aside from legal fees, other costs can include lost income from time away from work, and lost productivity from the time and energy that you or your employees spend cooperating with the investigation. These can be costly over the length of an investigation or trial. Mediation is quick and usually takes about two hours.
3. Mediation allows you to be heard. This may be the only time you can face the other party and share your point of view. It may be the chance to speak uninterrupted and voice your concerns, or explain a misunderstood situation and clarify your intent.
4. Mediation is less formal than court. Mediators don't make outcome decisions and there are no judges. Mediation is an informal way to communicate and try to reach a resolution. MDCR cases and court cases are generally public information for anyone to see and read about, which can ruin reputations.
5. Mediators are neutral and will not give advice or advocate for either side.
6. Mediators control the process. Mediators make sure everyone has an equal chance to speak and make suggestions.
7. Mediation is confidential. What is discussed in that room, stays in that room. Mediators will not be subpoenaed and all mediator notes taken during the meeting are destroyed. Information from the mediation has no effect on the investigation or future court cases.
8. Mediation allows you to think outside the box. You can negotiate anything at mediation. You can be creative and use this opportunity to offer your own suggestions on how to resolve the complaint rather than accept someone else's decision which may not be satisfactory to you.
9. Mediation settlements are no-fault settlements. When a written agreement is reached in mediation, you do NOT admit any fault or violation of the law. A mediation agreement does not equal a "wrong-doing" in the eyes of MDCR.
10. Mediation is a chance to put an end to the issue. If the case is not successfully mediated, MDCR has to continue its investigation which could include supplying documents, and providing witnesses to be interviewed during the work day.
How Can I Learn More About Mediation?
If you filed a complaint of discrimination with MDCR, or if a complaint has been filed against you, your company or organization, and you wish to consider mediation, our Mediation Coordinator can assist you. Further, if you would like to provide pro bono mediation service to MDCR or if you need additional information about mediation, contact:
Kerry Bernard
Mediation Coordinator
Michigan Department of Civil Rights
Cadillac Place - Suite 3-600
3054 West Grand Boulevard
Detroit MI 48202
Toll Free: 1-800-482-3604
Direct Phone: (313) 456-3765
Fax: (313) 456-3801
Email: bernardk@michigan.gov
You can also contact your local MDCR office for information.
The following links may provide useful information about mediation:
http://www.eeoc.gov/mediate/index.html
http://acresolution.org
http://www.mediate.com
http://courts.michigan.gov/scao/dispute/odr.htm
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