The Human Rights Bureau offers several options for voluntary resolution of discrimination complaints. Fast-Track Mediation is offered before an investigation commences; Settlement is attempted throughout the investigation process; and Conciliation is offered if the investigation results in a reasonable cause finding.
Before or during the informal investigation, if the parties are able to resolve the matter on their own, then the Human Rights Bureau would ask that the parties provide the Bureau with a copy of the settlement agreement and a signed withdrawal form. (The signed withdrawal form will withdraw the complaint from the administrative process.) The Human Rights Bureau reserves the right to redesignate the complaint. Mont. Code Ann. 49-2-210.
When facilitating resolution, the Human Rights Bureau cannot be a party to an agreement that contains a provision that the Respondent will not “rehire” the Charging Party. These “no rehire” provisions could be interpreted as retaliatory. Further, the Human Rights Bureau cannot be a party to an agreement that violates the statutory rights of a party (e.g. Charging Party agrees not to seek Unemployment Insurance, Charging Party agrees not to file a workers’ compensation claim). Finally, the Human Rights Bureau discourages the use of global releases in voluntary resolution agreements, such releases go beyond the scope of the complaint before the Human Rights Bureau.
What is Fast-Track Mediation?
Fast Track Mediation is a voluntary, informal and confidential process. A mediator (an unbiased third party) assists the parties in reaching a voluntary agreement before the Human Rights Bureau begins investigating the complaint.
The Human Rights Bureau has only 180 days to investigate a complaint of discrimination, so it can only offer mediation for a short-time frame immediately after the complaint is filed. If the case cannot be mediated, the complaint will be assigned for investigation.
Why Should Parties Agree To Mediate?
Mediation is an efficient process that saves time and money. A successful mediation avoids time-consuming investigation and achieves prompt resolution of the complaint.
Does Mediation Cost Money?
The services of the Human Rights Bureau mediator are provided without charge. The decision to mediate is voluntary for both parties and they may terminate their participation at any point.
What is The Role of a Human Rights Bureau Mediator?
The mediator is there to help the parties reach a resolution of their dispute. The mediator is not there to decide whether the allegations contained in the complaint did or did not occur. The mediator serves as a neutral facilitator and does not represent either side nor does the mediator provide legal advice.
How Long Does a Mediation Session Last?
The length of the session varies, but participants are asked to commit at least 4 hours.
Is Mediation a Legal Proceeding?
Mediation is not a legal proceeding. The mediator does not provide legal advice or legal counsel. When a party agrees to mediation, it is not a waiver of the right to proceed with the informal investigation of the allegations in the complaint.
What Happens During a Typical Mediation Conference?
The mediator will work with the parties to design the best format for the parties. It could be that the interests of the parties are best served by conducting the mediation through a series of phone calls or it could be that in-person mediation is the better option. Regardless of the format, if you have specific needs for mediation, including reasonable accommodations, please consult with the assigned mediator.
During typical in-person mediation, the mediator may begin with an opening statement about how the mediation conference will be conducted. Then the charging party will be given an opportunity to explain his or her grounds for the complaint and the type of remedy that is requested. Then the respondent will be given an opportunity to respond to charging party’s statements. Meeting together or separately, the mediator will then ask questions and attempt to clarify each party’s position. Ultimately, the goal of the mediator is to assist the parties’ discussion of a mutually satisfactory resolution.
What Can a Charging Party Ask for and What Can a Respondent Offer in Order to Achieve Resolution?
The terms of resolution offer an excellent opportunity for the parties to reach common ground. It could be that the parties agree to some sort of monetary amount in order to reach resolution. This money could be for back pay, front pay, and/or emotional distress. That said, there are a variety of non-monetary terms that may prove useful in reaching a resolution. For example, a party may simply want recognition of being wronged or a neutral reference. A charging party may want or a respondent may offer to change existing policies or to train staff on the topic of discrimination. In the employment setting, if it is feasible for the employer, a charging party may request reassignment or reinstatement, or perhaps additional training.
If both parties keep an open mind and are prepared to discuss a variety of options, this increases the odds of a satisfactory resolution.
May Representatives Attend Mediation?
Either party may bring to the mediation conference a representative or legal counsel (subject to negotiated agreements for bargaining unit employees) and should inform the mediator about a representative in advance.
What Happens if Agreement Occurs?
If settlement is reached, the Human Rights Bureau will draft a voluntary resolution agreement acceptable to all parties and, if present, their representatives. Each party should have full authority to settle at the mediation conference, however in limited circumstances, appropriate management or legal personnel often review and approve the terms before they are effective. A signed agreement is legally binding on the parties.
What Aspects of Mediation are Confidential?
Matters discussed in private with the mediator are kept confidential and will not be disclosed without permission. Mediators are bound by law not to disclose this information voluntarily. Few rare exceptions to this rule exist, e.g., if you say that you committed a criminal offense or act of fraud, waste, or abuse, or you plan to commit a violent physical act, the mediator may have to share this information with appropriate authorities.
Mediation sessions are neither tape-recorded nor transcribed; after the session, notes and document copies are destroyed.
The Human Rights Bureau will work with the parties on reaching a settlement throughout the informal investigation process. A settlement agreement can be facilitated through the Human Rights Investigator assigned to investigate the complaint.
During the course of an investigation, you may be contacted about attending a Fact Finding Conference. The Fact Finding Conference is not a hearing. It is a voluntary, informal conversational conference conducted by the Investigator in a neutral setting. During the Fact Finding Conference, the parties meet with the investigator to define and clarify issues, and present and dispute evidence in a respectful manner. The advantage to participating in the fact-finding conference is that the parties get an opportunity to hear what the other party has to say and respond to those statements. After this completion of this fact finding conference, if the parties are both interested, the Investigator can make him or herself available to discuss resolution of the case.
If you are currently participating in an open complaint and would like to schedule a Fact Finding Conference, or you have questions about it, please contact your Investigator.
If the Human Rights Bureau concludes the informal investigation and finds reasonable cause to believe unlawful discrimination occurred, then the Bureau is required to attempt to resolve the case through conciliation. Conciliation, similar to mediation and settlement, is a process by which the Human Rights Bureau assigns a Conciliator (a neutral third party) to attempt to resolve the complaint and avoid further legal proceedings. The conciliation period lasts 30 days from the investigation closure date. The Conciliator will contact the parties to determine if conciliation is possible. The Conciliator does not represent either party, but will assist in putting together a conciliation agreement for the parties to sign. (This conciliation agreement must also be signed by the HRB Bureau Chief.)
A worksheet identifying the types of damages usually awarded in employment discrimination cases is available here. Charging parties may use this worksheet to assist in calculating a conciliation proposal.
In addition to any individual relief sought by the charging party, the Bureau will also require affirmative relief, to ensure any discrimination practices identified do not continue, before it will approve any conciliation agreement.
If the case cannot be resolved through conciliation within 30 days, the case is certified for a formal contested case hearing before the Department of Labor and Industry’s Hearings Bureau. If the parties intend on negotiating a conciliation agreement without the assistance of the HRB conciliator, it is still in the parties’ best interest to contact the Human Rights Bureau prior to finalizing that agreement. Once the Bureau has made a determination of discrimination, it is obligated to seek conditions that eliminate the discriminatory practice. Mont. Code Ann. 49-2-504(2)(b). And, when the Department is aware of a possible violation of the Montana Human Rights Act, it the Commissioner of Labor has the option of redesignating that complaint (as a Department complaint) in order to secure such conditions. See Mont. Code Ann. 49-2-210.