The Mediation Process: How it Begins and When the Mediation and Resolution Agreements are Introduced

Typical Scenario: To explain the mediation process and illustrate the use of the agreements to mediate and resolve, let us assume the following set of facts. Two city employees - - Mr. Smith and Ms. Jones - - share a small office in a large city agency. A dispute arises when Mr. Smith, who is in the process of completing an important project, complains that Ms. Jones is playing her radio loudly. He says that he is tired of "that kind of music" and abruptly asks her to reduce the volume. Ms. Jones is offended by Mr. Smith's comment and responds that he is a racist. Ms. Jones demands an apology, but Mr. Smith refuses. Ms. Jones then increases the volume. At that point, Mr. Smith calls for a supervisor to resolve the problem. The supervisor tells them to work it out. Ms. Jones ultimately files a complaint with the agency's EEO office. Mr. Smith and Ms. Jones are not speaking to one another.

How Does the Process Get Started? If either of the parties (Mr. Smith or Ms. Jones) wishes to participate in mediation, he or she must first contact his or her EEO office to determine if the agency has agreed to participate in the Mediation Program. If the agency is a participating agency, Mr. Smith or Ms. Jones must consult with the agency's EEO Officer to determine if the claim is appropriate for mediation. Not all claims are appropriate for mediation. For Police Department personnel who are interested in mediating, they must first contact the Police Department Office of Equal Employment Opportunity. In the case of Mr. Smith and Ms. Jones, their agency is participating in the Mediation Program and Mr. Smith contacts the EEO Officer and asks for the case to be mediated. The EEO Officer determines that this is an appropriate case for mediation and informs both parties that the case is being referred to the Mediation Center. The mediator will contact Mr. Smith and Ms. Jones and ask if they want to participate in this voluntary program. Both parties agree and the mediator then schedules the mediation to occur at OATH's offices at 40 Rector Street, 6th Floor. Generally, the scheduling occurs within a week or two of the contact.

The Introduction to the Mediation and the Signing of the Agreement to Mediate: Once the mediation is scheduled and the parties arrive at OATH's offices, the mediator will escort them to a conference room. The mediator will remind the parties that the process is informal and totally voluntary. The mediator will ask Mr. Smith and Ms. Jones to review the Mediation Guidelines and sign the Agreement to Mediate, which is an understanding that both parties agree to voluntarily abide by basic ground rules that relate to communication, respect and confidentiality. The Agreement to Mediate incorporates the Mediation Guidelines that set the basic ground rules:
• to address each other in a civil and courteous manner;
• to be prepared to discuss the facts of the complaint;
• to consider the other side's concerns and interests;
• to consider options for the resolution of the complaint;
• to be open to any and all solutions to the complaint;
• to speak directly to each other and to use counsel as little as possible. A party may bring an attorney or representative to the mediation, but no one else may attend without the permission of the parties and the consent of the mediator;
• to recognize that the mediator has the discretion to terminate mediation at any time if the mediator believes that the case is inappropriate for mediation, that a deadlock has been reached or that either party is just gathering information for a future claim;
• to attend the mediation with a good faith intent to settle this dispute during the mediation session;
• to recognize that the mediation is a confidential process and agree to abide by the confidentiality provisions that prohibit revealing any of the matters discussed during the mediation.

Once Mr. Smith and Ms. Jones sign the Agreement to Mediate, the mediation can begin. They may bring their attorneys or representatives. However, it is important to note that the attorneys and representatives must also sign the agreement and keep the mediation confidential. It is highly recommended that the parties speak directly to one another as much as possible and try to limit their reliance on their attorneys or representatives. While recognizing the importance of private counsel and their participation in the process, based upon experience, it is more useful if the parties communicate directly to one another. This direct and unfiltered communication helps the parties in understanding their concerns and ultimately improves the parties' relationships. The mediator's role as the neutral is to facilitate this discussion and ensure that one party does not dominate the mediation.

It is important to remember that after the mediation ends and the representatives go back to their offices, the parties must learn how to interact with each other on a daily basis. The mediation helps with this process of rebuilding relationships.

The Actual Mediation: During the mediation, it was discovered that Ms. Jones is under a great deal of pressure to meet more stringent deadlines set by her new supervisor. She plays the music loudly to assist her concentration. In contrast, when Mr. Smith is under a great deal of pressure, he needs a quiet room to complete his work. Both Mr. Smith and Ms. Jones were surprised by this information.

When he asked her to lower the volume on her radio, Mr. Smith never intended to comment on Ms. Jones' race or her preference in music. In fact, he enjoys the same music that she enjoys, but the volume was too high. Ms. Jones revealed to Mr. Smith that she perceived Mr. Smith's remark as discriminatory because she thought it was directed at her race. During the mediation session, the mediator was able to facilitate discussion between the parties and, with minimal attorney participation, it was revealed that the increased workload had placed a great deal of pressure on both Mr. Smith and Ms. Jones. Mr. Smith agreed to apologize for his remark. Ms. Jones in turn agreed to apologize for her comment and to listen to her music over headphones. It was also agreed that Ms. Jones could listen to her music without headphones, after 4 p.m., when Mr. Smith leaves for the day.

Resolution Agreement: Once Mr. Smith and Ms. Jones came to a mutually acceptable resolution, they signed an Agreement to Resolve, which is simply an understanding between the parties either to perform an act or not to perform an act. In this case, Mr. Smith's and Ms. Jones' apologies would be included as well as Ms. Jones' agreement to listen to her music over headphones. Besides agreeing to these acts, the parties also voluntarily agree to withdraw any claims related to the incident, not to file any future claims and to keep the incident and terms of the settlement confidential. In a Resolution Agreement, the parties agree:
• to withdraw any EEO claims filed with the EEO office and to withdraw any other claims and lawsuits involving this set of facts;
• to keep the mediation and the contents of the agreement confidential and not to disclose any information concerning the agreement, except to the parties' attorneys or representatives. The mediator and the parties' attorneys and representatives also agree to keep the agreement confidential, when they sign the agreement;
• to represent that the agreement is complete and full settlement of the claims and that they will not seek any other remedy before any other agency arising out of this claim;
• to represent that the agreement constitutes the entire agreement by the parties, and may not be modified, altered or changed except upon the written consent of the parties;
• not to introduce the agreement in any proceeding other than one seeking to enforce the terms of this agreement.

After signing the Resolution Agreement, the claim is resolved and it is now closed out at the EEO office.