Tuesday, June 14, 2016

Equal Right Division's Early Mediation Program

Back in 2011, the Wisconsin Equal Rights Division ("ERD") reinstituted its Early Referral Mediation Program.  When a Complainant files a discrimination complaint with the ERD, inside the envelope along with a copy of the complaint, instructions and cover letter is a pamphlet about the Early Referral Mediation Program.  Frequently I receive phone calls about this program and the purpose of this post is to try and explain the Program and it's benefits and some of the reasons perhaps a Complainant would choose to not try the Program, though the pamphlet is a very good, thorough, and easy-to-understand source of information as well.

What is Mediation?

Mediation is a form of alternative dispute resolution ("ADR") and its goal is to help the parties reach a resolution to their case.  The mediators are third-party individuals who are not involved with the case whose goal is to help the parties settle as they often pride themselves on their high settlement rates.  The ERD uses current Administrative Law Judges ("ALJ"), who will not be assigned to hear the case if it goes to hearing, as mediators.  A nice benefit to having ALJ's as mediators is they can provide extremely helpful insights to your case as they have to decide employment discrimination cases on a routine basis and can identify issues with cases as often times people believe their cases are stronger than they are.


Do I Need an Attorney for Mediation?

It is often advised to retain an attorney as they generally help with the process and can guide individuals on how to best handle and settle their cases--or whether to settle them at all.  People are often not knowledgeable about the types of remedies they can obtain through employment discrimination suits through the ERD and can sometimes have unreasonable and unrealistic settlement demands.  Having an attorney often yields higher settlements at mediation because the Respondent knows they may have to face tough opposition if they don't settle and have to go to a hearing.

Every attorney is different but some attorneys like engaging in mediation as early as possible to not only see if the case can settle with ease, but also to learn a lot about their case early on so that it may be helpful down the road.  On the other hand, some attorneys think mediation can be a waste of time early on because it's not likely to yield a favorable settlement amount given not too much is known about their case at the complaint stage and the ERD does not require Respondent's to file a written response to complaints if the parties choose to engage in early mediation.  Thus, if a Complainant does not believe the Respondent will come anywhere close to their settlement demand, it can be a waste of time.  In fact, usually if both parties have an attorney, the attorneys spend time trying to settle first before resorting to mediation.  If the attorneys are too far apart, then mediation is usually not likely to bridge the gap.  If the attorneys are reasonably close, then mediation is often a good idea because the mediator may be able to convince one or both sides why they should make concessions.

What Happens if My Case Doesn't Settle?

If mediation does not result in settlement, then the case is sent back down to investigation and the investigator assigned to the case.  If the Respondent hasn't file a written response, they will be required to do so and then the investigator can make their Initial Determination.

Even though early mediation may not be successful, the ERD allows the parties to engage in mediation again later in the process if they believe it may be helpful as the ERD generally prefers cases not have to go to hearing and, indeed, some, if not all, ALJs attempt settlement the morning of hearings to give settlement one last chance.

Last Tips:
  •  Having an attorney for mediation is recommended, though not required
  • Mediations can take anywhere from a few hours to a few days, so patience is key
  • Try to keep in mind issues with your case and try and understand the other side's case and point-of-view 
  • Mediators are meant to be neutral and if you feel that they are against you, still consider what they have to say as it may be beneficial if your case is pursued to investigation

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