MCAD Alternative Dispute Resolution (ADR)

The MCAD’s Alternative Dispute Resolution (ADR) Unit provides ADR services to parties who wish to work to resolve their disputes and reach settlements of their claims through mediation or conciliation.

The MCAD offers ADR services at three points in the life of a complaint at the MCAD. All ADR services at the MCAD are free processes, with the expectation that parties who avail themselves of these services are working in good faith to resolve their cases. The MCAD’s three full-time mediators are seasoned lawyers who are trained and experienced in mediation as well as other ADR processes.  They are well-versed in all aspects of anti-discrimination law for employment, housing, and public accommodation claims. 

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. 

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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.

1. 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.
2. 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.  

Date published:	November 15, 2024