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Labor/Employment, Alternative Dispute Resolution

Aug. 1, 2018

DFEH is recruiting volunteer mediators for statewide initiative

With just 11 full-time and part-time DFEH mediators, there are far more cases in California that we can assist.

The Department of Fair Employment and Housing is recruiting attorney mediators statewide to volunteer to mediate employment or housing discrimination complaints filed for investigation with the Department. The largest state civil rights agency in the country, in 2017 DFEH processed 24,779 complaints from the public alleging violations of the laws we enforce, including the Fair Employment and Housing Act, Unruh Civil Rights Act (public accommodations), Disabled Persons Act, Ralph Civil Rights Act (hate violence), California Trafficking Victims Protection Act, and Government Code Section 11135, which prohibits discrimination in all government-funded activities and programs.

DFEH has provided mediation services in some form since the late 1990s, but it was not until 2012 that our Dispute Resolution Division was formally recognized in statute. SB 1038 (effective Jan 1, 2013) fundamentally reshaped the work of the agency by eliminating administrative adjudication of claims, authorizing the department to litigate cases directly in court, and requiring us to offer alternative dispute resolution before filing a civil complaint.

The department now employs a staff of experienced neutrals whose exclusive role is to facilitate formal mediation of complaints. Since its inception, the Dispute Resolution Division has steadily increased the number of cases it mediates each year, conducting 897 mediations in 2017. The core of the division's work is providing mandatory dispute resolution services for investigated cases the agency intends to prosecute. But our mediators also conduct hundreds of mediations each year that are "voluntary," meaning the parties have requested formal mediation without going through the investigative process and before any finding of merit has been made.

Some of these cases involve potentially serious liability and damages, resembling discrimination matters familiar to California litigators. But a large number involve conflicts that are unlikely ever to land on a private lawyer's desk. These include disputes where there is an ongoing employment or housing relationship that has been harmed by perceived bias or unfairness. Whether or not a legal violation is ultimately found, many of these cases can be resolved through sensitive negotiation that preserves jobs, homes, and relationships.

Often, the crucial bargain in these negotiations will not be about money, but about some form of accommodation, whether in the form of a modified work schedule, a change in the work or housing environment, modification to a living space, or countless other adjustments that allow the relationship between the parties to move forward. In this way, voluntary DFEH mediations are often forward-looking and transformative. All DFEH-mediated settlement agreements include "affirmative relief" as defined in Government Code Section 12926(a), including the development of policies or practices designed to prevent future discrimination or harassment. Other forms of relief frequently negotiated in DFEH mediations include reinstatement, transfers, reassignments, promotions, posting of notices, training of personnel, testing, expunging of records and reporting of records. Mediators assist parties to select the affirmative relief that is best suited to the complaint at issue.

Here, the peacemaking function of our work is at its peak. This function, which is concerned with human relationships more than formal legal rights, is not ancillary to the work of the department. Our law recognizes that even a perception of discrimination and unfairness "foments domestic strife and unrest [and] deprives the state of the fullest utilization of its capacities for development and advancement." Government Code Section 12920. Even in the absence of a complaint, the department is empowered to provide assistance to communities or groups experiencing conflict or tension relating to discriminatory practices. Government Code Section 12931. And employers have a statutory right to request the assistance of DRD if their own employees refuse or threaten to refuse to cooperate with the Fair Employment and Housing Act. Government Code Section 12960(c).

But with just 11 full-time and part-time DFEH mediators operating out of three offices (in Elk Grove, Fremont and Los Angeles), there are far more cases where parties request mediation than we can assist. At the same time, there are experienced attorneys throughout the state, skilled in dispute resolution, who are committed to bringing their training to bear in resolving disputes in their communities.

For that reason, we are welcoming applications to volunteer to mediate complaints filed with DFEH statewide. The application form, including information about qualifications, is available on the department's website and should be submitted by email or mail no later than Aug. 17, 2018, to Lisa Zeltner, Dispute Resolution Division Manager, Department of Fair Employment and Housing, 2218 Kausen Blvd., Suite 100, Elk Grove, California 95758. Applications will be screened and the most qualified candidates will be interviewed. For more information about our dispute resolution services, visit our webpage. We welcome questions and inquiries.

#348612

Ben Armistead

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