Mediation is a form of Alternative Dispute Resolution (ADR) that is offered by the Delaware Department of Labor’s Office of Anti-Discrimination (OAD) as an alternative to the traditional investigative and litigation processes. Mediation is an informal process in which a trained mediator assists the parties to reach a negotiated resolution of a charge of discrimination. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties. Instead, the mediator helps the parties to jointly explore and reconcile their differences.
Only mediators who are experienced and trained in mediation and equal employment opportunity law are assigned to mediate OAD charges. OAD has a trained mediator on staff. We also contract with professional external mediators to mediate charges filed with OAD. All OAD mediators, whether internal staff or external mediators, are neutral unbiased professionals with no stake in the outcome of the mediation process.
Mediation will usually take place early in the process prior to an investigation of the charge. Offering mediation to the parties prior to an investigation saves Commission resources by avoiding the investigation of a charge that might be appropriately resolved through mediation. In addition, mediation prior to an investigation prevents the hardening of positions that can occur during a lengthy investigation.
Yes. The OAD maintains strict confidentiality in its mediation program. The mediator and the parties must sign agreements that they will keep everything that is revealed during the mediation confidential. The mediation sessions are not tape-recorded or transcribed. Notes taken during the mediation by the mediator are destroyed. Furthermore, in order to ensure confidentiality, the mediation program is insulated from the OAD’s investigative function. OAD mediators only mediate charges. They are precluded from performing any other functions related to the investigation or litigation of charges.
The charging party and a representative of the employer should attend the mediation session. The person representing the employer should be familiar with the facts of the charge and have the authority to settle the charge on behalf of the employer.
Yes. While it is not necessary to have an attorney or other representative in order to participate in OAD’s mediation program, either party may choose to do so. The mediator will decide what role the attorney or representative will play during the mediation. The mediator may ask that they provide advice and counsel, but not speak for a party. If a party plans to bring an attorney or other representative to the mediation session, he or she can discuss this with the mediator prior to the mediation session.
Mediation is a very efficient process that saves time and money. According to a study conducted by the OAD, mediations usually last for approximately 3-4 hours. However, this may vary depending on the facts of each case. Successful mediations avoid a time consuming investigation and achieve a prompt resolution of the charge.
No. The OAD evaluates each charge to determine whether it is appropriate for mediation considering such factors as the nature of the case, the relationship of the parties, the size and complexity of the case, and the relief sought by the charging party. Charges that the OAD has determined to be without merit are not eligible for mediation.
An agreement reached during mediation is enforceable in court just like any other settlement agreement resolving a charge of discrimination filed with the OAD. If either party believes that the other party has failed to comply with a mediated settlement agreement, he or she should contact the ADR Coordinator.
Yes. Participants in the OAD’s mediation program indicate a high degree of satisfaction with the program. It is a fair and efficient process that can avoid a lengthy investigation and the possibility of unnecessary litigation.
No. Since the entire mediation process is strictly confidential, information revealed during the mediation session cannot be disclosed to anyone including other OAD personnel. Therefore, it cannot be used during any subsequent investigation.
Yes, in almost half of the cases that are mediated, the settlement involves a non-monetary benefit. Since the program’s inception, in approximately 15% of cases, the only benefit involved in settlement is non-monetary.
One of the biggest benefits of mediation is that it allows the parties to resolve the matters in dispute in a way that is mutually satisfactory to them and meets their needs. In addition, mediation is faster than the traditional investigative process. The process may also allow the parties to preserve or repair the employment relationship. The parties have nothing to lose by participating in mediation. If a resolution is not reached, the charge will be investigated like any other charge.
Mediation provides a neutral and confidential setting where both parties can openly discuss information about the underlying dispute. Through enhanced communication, mediation can foster improved working relationships and a better understanding of factors which may be affecting the overall workplace.
For additional information about the mediation program at OAD, you may contact OAD’s mediation unit by calling our Wilmington office at (302) 761-8316 or (302) 761-8206, or our Dover office at (302) 422-1134 extension 16.