Cal. Code Regs. Tit. 2, § 10057 - 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 reason to believe that discrimination has occurred or is about to occur, 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)

(1) 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 shall be public records available in accordance with the department's Public Records Act policy, including the provisions regarding redaction, unless:

(A) In pre-investigation mediation, the parties request nondisclosure and the chief of dispute resolution, or a designated representative, determines that disclosure is not required to further the purposes of the laws enforced by the department.

(B) In mandatory dispute resolution, 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.

(2) Circumstances that may result in partial or complete nondisclosure of a settlement agreement may include, but are not limited to:

(A) Claims involving allegations of sexual harassment;

(B) A complainant's physical or mental condition, or medical diagnoses; or

(C) Claims involving circumstances that, if disclosed, could create a safety risk, including the fact that a complainant is a resident in a domestic violence shelter or other protected residence.

(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." Affirmative relief may include individual relief to make the complainant whole such as approving or restoring a housing opportunity, approval of a reasonable accommodation request, and relief in the public interest to prevent future discrimination or harassment such as training, the development of policies or practices, and affirmative advertising. DFEH mediators assist parties to select the affirmative relief that is best suited to the housing complaint at issue. Agreements shall also include reporting and monitoring provisions to ensure compliance with settlement terms.

(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

Cal. Code Regs. Tit. 2, § 10057

1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
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.

1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
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).