Cal. Code Regs. Tit. 2, § 10025 - DFEH Dispute Resolution 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) Pre-investigation
mediation is voluntary. Therefore, the department shall not assign a
pre-investigation complaint to a mediator to mediate unless both the
complainant and respondent (or their respective attorneys or advocacy
organizations, if any) have agreed to mediate.
(c) While a pre-investigation complaint is
with the dispute resolution 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.
(d) After an investigation finds merit under
the relevant legal standard and prior to filing a civil action, the department
shall require the parties to participate in mandatory dispute resolution in an
effort to resolve the dispute without litigation.
(e) Post-investigation mediation conferences
conducted after a civil action is filed ("post-civil action") shall be attended
by the member of the department's legal division who filed the civil action or
who has subsequently been assigned the case. If settlement is reached, the
legal division representative shall sign the settlement agreement.
(f) Regardless of whether the department
refers a complaint to the dispute resolution division before or after
investigation has commenced, the department shall suspend investigation while
the complaint is with the dispute resolution division. After mediation is
declined or is unsuccessful, the department shall commence, resume, or complete
the investigation as necessary.
(g)
When both sides agree to mediate a complaint pre-investigation, the department
may assign the complaint to a trained mediator employed by the department's
dispute resolution division or a trained volunteer mediator, 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. Matters the legal division refers for mandatory
dispute resolution shall be assigned to a DFEH attorney mediator.
(h) Except as otherwise required by law,
nothing that is said or done in the course of the mediation process may be made
public. However, settlement agreements reached in mandatory dispute resolution
shall be public records available in accordance with the department's Public
Records Act policy, including the provisions regarding redaction, unless the
parties request nondisclosure and the director, or a designated representative,
determines that disclosure is not required to further the purposes of the laws
enforced by the department.
(i) Any
written settlement agreement reached through a DFEH dispute resolution 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.
(j) All DFEH-mediated settlement agreements
shall include "affirmative relief" as defined in Government Code section
12926(a),
including the development of policies or practices to prevent future workplace
discrimination or harassment. DFEH mediators assist parties to select the
affirmative relief that is best suited to the complaint at issue.
(k) A copy of any settlement agreement
executed in connection with a DFEH dispute resolution division conference shall
be provided to the department's dispute resolution division.
(l) DFEH complaints resolved through
mediation shall be closed by the department.
Notes
2. Amendment of subsections (c)-(e), (h)-(i) and (i)(2)-(3) filed 10-27-2014 as an emergency; operative 10-27-2014 (Register 2014, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-27-2015 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 10-27-2014 order, including amendment of subsections (c) and (h), transmitted to OAL 4-20-2015 and filed 6-2-2015; amendments effective 6-2-2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 23).
4. Amendment of section heading and section filed 8-31-2017; operative 10-1-2017 (Register 2017, No. 35).
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.
2. Amendment of subsections (c)-(e), (h)-(i) and (i)(2)-(3) filed 10-27-2014 as an emergency; operative
3. Certificate of Compliance as to 10-27-2014 order, including amendment of subsections (c) and (h), transmitted to OAL 4-20-2015 and filed 6-2-2015; amendments effective 6-2-2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 23).
4. Amendment of section heading and section filed 8-31-2017; operative
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