When a party believes that his or her civil rights have been violated, such as through police misconduct, discrimination in the workplace or violations of fair housing laws, he or she may have the option of mediating rather than litigating the claim.  This process has many key differences to litigation.

Mediation is a voluntary process.  It does not happen unless both parties agree to it.  However, the parties do not waive their statutory rights simply by agreeing to mediation.  If the parties are unable to reach an amicable solution during mediation, they can proceed with their case through litigation.  Any time that they use to try to resolve the case through mediation usually tolls the statute of limitations and other deadlines since courts want to encourage parties to reach settlements out of court when possible.

The process is non-adversarial, meaning that the parties work together to resolve mutual goals.  In litigation, the parties are inherently adversaries.  Also, the parties are not restricted to the remedies available in court.  Possible solutions may include reinstatement, a reference letter, an apology, clarification on applicable policies, changes in policies, monetary awards or myriad other solutions that the parties agree to.

The mediator assists the parties in identifying issues, working through problems together and exploring different options for possible settlement.  The mediator’s role is to facilitate communication between the parties, not to impose a decision on them.

If the parties reach an agreement, they enter into a written contract, which includes a full provision that says that the complaint is being withdrawn and that the agreement is a final settlement of all charges.

Mediation is used in a number of different contexts, including employment law and other matters in which civil rights may be implicated. When the participants are willing to confront the issues together, they can often reach an agreeable resolution of the claim. Some of the claims that may be successfully mediated include:

Disability Accommodations

Employers and public accommodations that do not provide reasonable accommodations to individuals with disabilities may face civil rights violations. Mediation can help educate employers about possible ways that they may be able to adjust in order to keep a skilled employee at the company. Possible solutions may include changing the employee’s shift, adjusting job duties, providing appropriate tools or making other changes in the workplace. A compromise that parties may make in mediation is for the employer to provide training for managers on reasonable accommodation and leave policies.

Discrimination

Discrimination on the basis of sex, color, national origin, religion or race is prohibited by federal law. States may provide greater protections based on other protected characteristics. If a person is refused employment or accommodation due to protected factors, they may have a cognizable claim. Such liability can arise when an employer fails to hire, fails to train or fails to promote an employee because of these reasons. Likewise, if he or she terminates an employee for these reasons, the employee may have a civil rights claim.

Harassment

The employer generally has the responsibility to keep the workplace harassment-free. If the harassment is based on protected characteristics, the employer may be sued for creating a hostile work environment. Mediation may be able to help address problems associated with harassment. If the employee was forced to quit, part of the settlement may be to provide the employee with a job recommendation.

Retaliation

Even if an employer’s conduct was not discriminatory in nature, if it takes adverse action against an employer because he or she filed a complaint, the employer may be at the receiving end of a discrimination claim.

Determining When a Civil Rights Case Is Appropriate for Mediation

Mediation helps individuals, businesses and governmental agencies save time and money by having the parties come together in an attempt to reach an amicable resolution of their case. Determining whether a case is appropriate for mediation often depends on considering the temperament of the parties involved and the circumstances involved. Some specific factors that lean toward mediating a case include:

Parties have Differing Views on the Laws or Facts

When the dispute exists because there is a difference in opinion regarding the facts or laws, the case may be amenable to mediation. This process often serves as a reality check for the participants with the mediator explaining how the court has ruled in similar situations. He or she can also highlight the relative strength or weaknesses of cases.

When a Party Wants to Be Heard

Even if a case goes to litigation, the claimant may never feel that he or she had the opportunity to explain his or her own perspective. Mediation can be an effective way to allow the claimant to express his or her emotions and to receive empathy in response. Also, the party may want to talk to the other party directly, which can happen in mediation but not usually in litigation.

Poor Communication

In some situations, a negotiation is a logical conclusion to a case. However, the parties may simply be unable to communicate effectively with each other. Mediators are skilled professionals who use a variety of dispute resolution techniques to get the parties to express their feelings, identify their interests and find points of agreement. The parties may perceive their interests as incompatible, but a mediator may be able to change this mindset and help the parties align their interests.