MCAD FACT SHEET MEDIATIONEARLY INTERVENTION PRO SE MEDIATION GENERAL INFORMATION Mediation Described, Generally
How to Prepare for Mediation; Who Should Attend
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Agreement to Mediate, Confidentiality Agreement
What is mediation?
Mediation is a voluntary, confidential settlement negotiation assisted by a "neutral third party," the mediator. The goal of mediation is to settle the disputes between the parties The mediator helps the parties negotiate an agreement that resolves their claims.
What is the difference between mediation and the regular investigation process at the MCAD?
The MCAD investigation process is a form of litigation, which is adversarial in nature. Parties in litigation are in opposition to one another. This process is focused on determining the facts underlying the dispute and then applying the law to those facts to determine whether the law has been violated or not. In other words, it's about proving whether the discrimination alleged has occurred. Further, this process involves a decision maker who will make a determination and impose his or her decision on the parties.
In mediation, the goal is an agreement acceptable to both parties. Accordingly, the parties work together, rather than against each other. There is no decision maker involved, rather a mediator assists the parties to communicate to work toward an agreement that resolves their conflict. In mediation, past events are relevant in explaining why the parties are at odds and helping the parties weigh alternatives to settlement. There is, however, no focus on "right" or "wrong." Instead, the focus is on common interests such as wanting to resolve the matter quickly and inexpensively.
What are the advantages of mediation?
Mediation has many advantages over litigation. The biggest advantage is that the mediator helps the parties resolve their dispute in a manner satisfactory to both. The process is empowering, and the parties can create remedies that directly address their specific interests. This is generally more satisfying to parties than being told what to do by a judge or hearing officer. Mediation also helps parties resolve their claims much faster than it would take to get a decision in the litigation process, which saves them time and money, and eliminates stress for everyone.
How does mediation fit into the MCAD's system?
The regular investigation is "stayed," or put on hold, while the mediation process goes forward. This means that neither party need file any required papers, such as a Position Statement. The investigation resumes if the parties cannot agree on a mediated settlement.
What is the mediation process like?
Generally, the parties start off together in a room with the mediator. Each side, starting with the Complainant, briefly explains their perspective on the dispute. Since the parties, not the mediator, are the decision makers, the purpose of this explanation is to inform, not convince the mediator.
The next step is typically taken by the Complainant who proposes a suggestion for resolution, as the Complainant ought to identify the harm he or she claims to have suffered and address what remedies are important to him or her. The Respondent is free to follow-up with a counter-proposal.
The mediator then holds private sessions with each party. There, the mediator explores each party's interests, and helps them to look at the strengths and weaknesses of their claims and defenses, as well as the value of settling versus not settling the cases. This analysis helps each party to arrive at a potential settlement agreement. The mediator communicates information and proposals from each party to the other, and as a result, a solution should begin to take shape.
Eventually, it becomes clear whether the parties are able to reach an agreement. At this time, the mediator brings the parties back into a final joint session to conclude the mediation, either with an agreement to be written and signed, or instructions on how the case will proceed if no resolution is reached.
Where will the mediation take place?
The mediations are conducted at the Boston office of the MCAD located at: One Ashburton Place (the McCormack Building), on the 6th Floor.
How long does the mediation last?
It takes time and effort to negotiate a settlement. You should be prepared to stay as long as three hours.
Who are the Mediators of cases at the MCAD?
To make sure the mediation process is confidential and to improve the possibility of settlement, members of the MCAD enforcement staff do not mediate cases. The mediators are legal professionals; some have contracted with the MCAD to mediate cases, some are volunteers. They have all been trained to mediate and are experienced in mediating employment and other discrimination disputes.
If I decide to mediate, what's the next step?
Fill out the "Agreement to Mediate" and "Confidentiality Agreement" below and mail them back to the MCAD. (See below, "Contact Information.") Once the MCAD learns that both sides are interested in mediating their case, it will contact them to schedule the mediation. Prior to commencing mediation activities, however, both parties must sign a mediation agreement and a confidentiality agreement.
If the case settles in mediation, the MCAD will dismiss the complaint and neither party may pursue it in any court or forum.
If the case is not resolved in mediation, the Respondent has the responsibility to contact the investigator and agree on a due date for the Position Statement. Further, the parties must attend their investigative conference.
What happens to our case after mediation?
That depends on the outcome of the mediation:
If the parties reach a settlement, the case is dismissed from the MCAD according to the terms of the settlement agreement, and the claim may not be pursued elsewhere. All the terms of the settlement agreement are binding and enforceable in a court of law (but not through the MCAD, because our jurisdiction will end when the case is dismissed).
If the parties are unable to reach a settlement, the regular investigative process will resume and continue to a conclusion. None of the information shared in the mediation effort is shared with the MCAD, so a case that resumes investigation will be unaffected and uninfluenced by the settlement attempt.
Am I required to mediate?
No. Mediation is a voluntary process, and both sides must consent.
What do I pay the MCAD for this mediation?
Nothing. The MCAD pays for the mediator's services.
How do I prepare for the mediation?
Be prepared to tell the mediator about two things: (1) What you feel the conflict is about; and (2) What you propose to the other side as a way to resolve the conflict.
Is there any special form a proposal must take?
Mediation takes a "problem solving" approach to the conflict. Unlike litigation, mediation offers a shared opportunity to build a remedy to fit the situation. Generally, each party's settlement proposal should be offering the other side something that the other party would consider a valuable settlement term and therefore reasonably considered by either party.
The mediator, as a neutral, will not instruct you what to suggest or include in your proposal or counter-proposal. As a starting point, however, parties should consider the consequences they have experienced as a result of the conflict to explore practical ways to resolve or prevent it from occurring again. At the same time, each party should be open to understanding how their actions may have contributed to the conflict.
Proposals arrived at through a focus on problem-solving are the most productive and most likely to be well-received by the other party.
What should I bring to the mediation?
Bring yourself, ready to work hard and willing to keep an open mind. Also bring any documents that could help the mediator to understand the case.
Why doesn't the Respondent have to submit its position statement before the mediation?
The position statement is a document that is part of the MCAD case investigation process, and a response to the Complaint that claims the Respondent has violated the law by discriminating against the Complainant. Since mediation tries to bring the parties together to work together at resolving the dispute outside the regular MCAD case investigation process, they are asked to put aside things that may distract them from this goal.
Who should I bring to the mediation?
You and your attorney or professional advocate, if you are using one, should plan to come to the mediation. Interpreters are also allowed to attend as needed. All other individuals are asked not to attend -- including witnesses, spouses, friends and other family members.
Do I need an attorney for mediation?
That's a personal decision each party must make.
Won't I look "weak" by agreeing to mediation?
No. Even though each side may feel very strongly about its position, there are many reasons a party may still choose to mediate. Mediation is an opportunity for resolution, not proof of weakness. The mediator's role is to help the parties weigh the advantages and disadvantages of their available choices as a means of reaching a resolution that is of value to them.
If I agree to settle the case during the mediation, won't it look like I am admitting to some wrongdoing or that my claim is unimportant?
No. Parties settle cases privately in mediation without admitting any liability or weakness, either verbally or in writing.
If I mediate, am I required to settle my case?
No. The parties are not required to settle the case during mediation, but they are expected to make a good faith effort to try and resolve it. If the parties are not able to agree upon a proposed resolution, they can conclude the mediation and continue with the regular MCAD case investigation process.
What is confidential about mediation?
Regardless of whether the case settles or not, whatever is said in mediation -- either in front of the other side, or alone with the mediator - can not be repeated outside of the mediation process, including at the investigative conference or at any other hearings. It also means that the mediator will be willing to keep private what you say in your separate meeting alone with him or her.
If the parties reach settlement, the terms of the settlement agreement will also most likely be confidential. Settlement agreements for housing cases involving HUD (Federal Agency for Housing and Urban Development) are subject to a limited inter-agency disclosure whereby the MCAD will provide a general description of the settlement terms to HUD for its confidential record-keeping purposes.
What if we settle the case during mediation, but afterward one of the parties does not follow through with the settlement terms?
A settlement agreement is a contract between the parties. A settlement agreement has the same impact as any other contract that is enforceable in court. Once the case is dismissed from the MCAD, it will not be re-instated for breach of contract. The appropriate remedy is to seek its enforcement in court.
If you are interested in mediating your claim, you may let us know by completing and signing the Agreement to Mediate and Confidentiality Agreement and mail them to the following address:
Outreach Mediation Unit Early Intervention Pro Se Mediation Massachusetts Commission Against Discrimination 1 Ashburton Place, 6th Floor Boston, Massachusetts 02108
Please respect that telephone time is devoted to cases in which mediation has been approved. Phone calls requesting mediation, therefore, will not be acceptable.
You will be contacted only if:
a) All parties agree to mediate; AND
b) The case is approved for mediation.