Early Mediation
Early mediation is voluntary and is offered at the beginning of a claim’s investigation process. Early mediation typically takes place after the complaint and position statement have been filed at the MCAD.
Conciliation
Conciliation is mandatory and is offered after a probable cause determination has been made by the Investigating Commissioner as an initial finding in the claim's disposition. As required by the MCAD's governing statute, M.G.L. c. 151B, all parties and counsel are required by law to attend the conciliation conference.
Late Mediation
Late mediation is voluntary and is offered at the end of the discovery period or at the time a case may be certified for public hearing. Late mediation is only offered if the parties feel the case can be settled through mediation at this post-discovery stage, prior to the public hearing, and at the discretion of the ADR Director, working in collaboration with the Investigating Commissioner.
ADR Roundtable Sessions
The MCAD ADR Unit offers ADR Roundtables annually. These present valuable information related to mediation and conciliation at the MCAD. They provide helpful and practical advice and insights about the ADR processes at the MCAD, including preparation and best practices tips for attorneys who represent parties at the MCAD. In addition to the annually presented ADR Roundtables, the ADR Unit has also provided the recorded ADR Roundtable Session in the video below.
Video: MCAD ADR Roundtable Session
Skip this video MCAD ADR Roundtable Session.Tips for Mediations & Conciliations
Tip #1: Be Prepared!
Preparation for mediation or conciliation differs from preparation related to other stages of litigation. ADR requires a creative, problem solving approach that addresses the interests and needs of the parties, while also mindful of the other party's. Preparation includes:
- Review and research of the MCAD and Massachusetts court decisions
- Assessing the strengths and weaknesses of one’s case as well as those of the other party's
- Strong knowledge of relevant facts, available supporting documentation, valuation of claims, and applicable statutory and case law
- Management of clients and their expectations
- Creative, out-of-the box thinking to break impasses in the negotiations and to better meet the interests and needs of the parties, especially when there is an ongoing relationship between them
Tip #2: Review the MCAD Regulations (804 CMR 1.00)!
The MCAD Regulations are an incredibly useful guide that governs the MCAD complaint process, from filing a complaint at the Commission through the hearing and appeal process. Before attending a mediation or conciliation, the regulations should be reviewed, in particular the sections that address mediation (Section 1.06), conciliation (Section 1.09), and motion practice (Section 1.13).
Tip #3: Make Motions Early!
In the procedural course of an MCAD claim, after there has been an initial finding or disposition of probable cause, two motions are sometimes necessary. The date of the conciliation is scheduled and noticed when a probable cause finding is noticed to the parties. Such gives parties at least two months of advance notice for the scheduled date of conciliation.
- Motion for reconsideration: made by respondent(s) advocating that the finding of probable cause was incorrect and needs to be challenged. As this motion may have bearing on the bargaining positions of the parties, it is best to make these motions in sufficient enough time for it to be decided before the scheduled conciliation date.
- Motion for a continuance: made by either party to reschedule the date of a conciliation due to a major conflict with already existing court dates, already scheduled family vacation plans, medical procedures, etc. The sooner a motion for a continuance is made, which should be an assented-to or joint motion, the better the chances that the motion will be granted and the conciliation will be rescheduled. Waiting and making this motion a week or two prior to the scheduled conciliation date will likely result in denial of the motion.
Tip #4: Know the Complainant's Lost Wages Information!
It is important and will lead to more productive negotiations for the complainants and their counsel to have information and documentation to support your demand for lost wages at your fingertips. You can be certain that our mediators are going to ask you to support the claim for lost wages with details including (a) what was the complainant getting paid at the end of their employment with the respondent; (b) when did the complainant start their next job; (c) how did the pay at the next job compare to the pay at the job with the respondent; (d) how did any benefits offered by either the former job or the next job compare with each other.
Counselors: Prepare your clients, the complainants, to be ready to answer these questions, because if they cannot recall or they are guessing at mediation, not only does it make it hard for the mediator and the respondent to assess the value of the demand, but it impacts their credibility if they are hemming and hawing about something so central to their case.
Tip #5: Supportive Information About Emotional Distress!
It is important and will lead to more productive negotiations for the complainants and their counsel to have information and documentation to support your demands for emotional distress damages in front of you during the mediation or conciliation. You can be certain that our mediators are going to ask you to support the claim for emotional distress damages with a lot more than the complainant making conclusory statements like “It was devastating” or “It negatively impacted my life and my career.”
For the complainant’s demand for emotional distress damages, you should have some supportive details to be able to answer these questions in front of you at mediation or conciliation:
- What, if any, medical health providers did you see relating to your mental health/emotional distress arising from what happened in this case?
- When and how frequently did you see these providers?
- What, if any, mental health diagnosis did they give you?
- What, if any, medications did they prescribe for this emotional distress?
- Did you go to any counselor or therapist and if so, when did you start going to sessions, how frequently did you go and what was the focus of those sessions?
- If you did not seek out any medical health providers, what if any other alternative approaches—spiritual/religious practices, meditation, yoga, therapeutic exercises, etc.—did you take to address your emotional distress?
- How did the alleged discrimination impact your day-to-day life: eating, sleeping, turning to self-medication, relationships with family and friends, etc.
If the complainant had a pre-existing mental health condition for which he or she was diagnosed and being treated before any of the alleged discrimination occurred, be ready to talk about what changed after the discrimination alleged. Was the pre-existing condition exacerbated by what happened in the workplace? Did that result in a change in levels or types of medication or in the need or frequency of seeking out counseling or therapy? If the complainant does not have a solid handle on this information, it will impact how much weight, credibility and value we put on the emotional distress demand.
Counselors: You should know whether there are medical records from both the providers and the therapists or counselors to back up the emotional distress factors, what they say and whether their focus is on the emotional distress arising out of the alleged discrimination. You know if there are other types of records that support alternative approaches (e.g., receipts from a yoga studio or meditation center, sleep records from your smart watch) as well. If you have any of those relevant records, it is best practice to have these with you during the session.
Tip #6: Focus on the Venue of the MCAD and What is Available at the Commission!
Please appreciate the venue in which you are mediating. Mediation and conciliation at the Commission are not the same as private mediation of court cases. Relief possible in court is not always available at the Commission. Punitive damages for one are not possible at the Commission. Nor are treble damages for age discrimination claims. Your demand should be based primarily on what is possible at the Commission. While the potential for a larger award in court is possible, you are not in court (yet). While the option of removing the case to court may be available to the complainant, and certain other remedies may be available there, there are also greater risks and shortcomings to removing the case: higher costs, a far more draining and likely more time-consuming litigation process, and the unpredictability of a jury as opposed to an MCAD Hearing Officer. Complainants may suggest a higher value in their settlement demands for avoiding the risks and costs of a court case and jury trial, but not the full value of those elements that are available through the courts, such as punitive damages or treble damages. In other words, do not include such high demand amounts – based on what one could get in court – that they hamper negotiations, are seen as bad faith and prevent productive settlement discussions.
Note that pursuant to the MCAD regulations (see 804 CMR 1.09), with respect to conciliations, the Commission also has the ability to administratively dismiss matters for failure to accept a reasonable settlement offer. In light of this, demanding more than is possible to achieve at the Commission could result in an administrative dismissal if respondent is offering a reasonable amount and the public interests have been met. Having to explain to your client that the Commission has dismissed the matter because the complainant’s demand was unreasonable and respondent’s assessment of a reasonable settlement amount was more appropriate is probably not a position in which you want to place yourself.
Tip #7: Focus on the Venue of the MCAD and What is Available at the Commission!
Sending settlement demand letters to the respondent(s)—perhaps even before the parties agree to avail themselves of early mediation at the MCAD—is beneficial to all parties. It is also advisable to copy the mediator assigned to the mediation ahead of time. If you have provided a demand to a respondent prior to agreeing to mediation, your demand should never increase between the scheduling of the mediation and the mediation itself. The Commission has on rare occasions had complainant’s counsel provide one demand to respondent’s counsel to entice them into mediation, only to make a much larger demand within days of the mediation date. If this occurs, the mediator may consider it bad faith. The mediator may also consider canceling the mediation upon being informed of the higher or unreasonable demand or end the session shortly after it starts. Note that early mediation is offered at the discretion of the MCAD, so showings of a lack of good faith may adversely impact whether you are granted mediations for any future clients you represent at the Commission. It is not an enviable position for you to have to explain to your client that the mediator canceled the mediation due to inappropriate or bad faith negotiations.
Tip #8: All Parties Should Be Mediating in Good Faith!
Similarly, from the respondent’s perspective, do not request or agree to participate in an MCAD mediation on a matter wherein respondent intends to take a “no settlement offer” position. MCAD mediations are reserved for matters where both parties intend reasonably to assess their risks and to engage in good faith settlement negotiations in an attempt to reach a resolution. Respondents should not occupy a coveted slot on the MCAD mediation calendar for the sole purpose of hearing the details of complainant’s demand, with no intention of making a good faith offer of settlement. Any attempt to use the mediation process merely as a “free discovery” tool will be considered bad faith and an abuse of the Commission’s resources. Respondents and their counsel who attend an MCAD mediation with no intention to engage in actual mediation will jeopardize their potential to be granted any further mediations in other matters before the Commission.
| Date published: | November 15, 2024 |
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