MEDIATION |
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PROCEDURES GOVERNING This service has successfully resolved a variety of conflicts, surrounding civil disorder, church burnings desecration of mosques, synagogues and other places of worship, racial tensions and violence in senior and junior high schools, colleges and universities, major demonstrations, hate crimes, racial tensions in housing units, environmental justice, Native Americans and local officials, and law enforcement use of force in minority communities. The following description is designed to provide interested individuals with an understanding of the mediation process, ground rules and procedures employed by CRS. JURISDICTION OF CRS Congress established CRS in 1964 with the purpose of providing “... assistance to communities and persons therein in resolving disputes, disagreements or difficulties relating to discriminatory practices based on race, color or national origin which impair the rights of persons in such communities under the Constitution or laws of the United States or which affect or may affect interstate commerce.” (See 42 U.S.C. 2000g-1). To fulfill this purpose, CRS offers mediation assistance. ENTRY BY CRS IN DISPUTES Mediation assistance from CRS may be effected upon the request of an appropriate State or local official, other interested person, or at CRS’ own discretion. PROTECTION OF CONFIDENTIALITY DURING MEDIATION The authorizing statute 42 U.S.C. 2000g-2, requires that: The Service shall hold confidential any information acquired in the regular performance of its duties upon the understanding that it would be so held.” In the over thirty-five years of CRS’ existence, no employee has been found to have violated this provision. In the single challenge to CRS’ confidentiality protection, the Court recognized the value of CRS’ relationship with the parties and upheld its responsibility to maintain confidentiality (See City of Port Arthur v U.S., Civil Action No. 80-0648, D.C. Dist. Ct.). Aside from facing criminal penalties set forth in the statute, CRS mediators realize that the effectiveness of our service will be seriously jeopardized if confidentiality is not observed. All proceedings within the mediation session remain legally privileged under Federal Rules of Evidence (Rule 408), evidence of conduct or statements made in compromise negotiations, i.e., mediation, may not be admitted at subsequent legal or administrative proceedings. All participants are asked to respect, even after the conclusion of mediation, the confidentiality of specifics of the discussion, except for those points set forth in the concluding agreement or other joint statements that the parties agree may be made public. ROLE OF THE CRS MEDIATOR The CRS mediator is responsible for establishing and interpreting ground rules and procedures for the negotiation session. The mediator schedules, arranges, and chairs the joint mediation sessions. When necessary, the mediator may arrange various kinds of resource assistance to the parties. The CRS mediator serves as moderator or referee to ensure that procedural rules are observed and to guide discussion toward constructive consideration of remedies and solution. In no sense is the mediator an arbitrator, judge, or decision-maker. CRS recognizes that only the parties themselves can reach a mutually satisfactory settlement, accomplished by full examination of the issues, open-minded exchange of views, and acceptance of resonable remedies or solutions to recognized grievances and needs. RESPONSIBILITIES OF THE PARTIES Often disputes referred to CRS involve claims from an organization or class of individuals against a government entity, employer, or corporation. CRS encourages the direct participation of the parties, assisted by counsel, at the negotiation sessions. Typically, the negotiating teams for each of the parties consist of three to five members. One member from each team should serve as chairperson and generally leads the team’s participation in negotiations. Each team is understood to be authorized to represent the interests and concerns of its constituency or parent body and to be empowered to seek a negotiated settlement of outstanding issues. Final authority to approve the agreement may rest with the negotiating team or with a parent body. Only those individuals who are able and willing to make a commitment to participate in every mediation session should consent to serve on a negotiation team. Continuity is vital as is full attendance of all negotiating team members. A team may wish to have one or two alternate members attend all mediation sessions, but they participate in negotiations only when one of their negotiators is absent due to illness or personal emergency. Each team should prepare thoroughly for the mediation process, developing its proposals for resolution of issues and problems, and planning for effective presentation of its proposals during joint negotiations. THE MEDIATION PROCESS Mediation is a voluntary process in which the parties to a dispute attempt to resolve their differences through discussion, clarification, and orderly negotiation. Unlike an adjudicated settlement of disputes, successful mediation does not consist of “winners” and “losers” but of parties who have carefully examined and resolved a defined set of issues and pratices. While mediation may address alleged past offenses, its main focus is prospective, forging a consensus on reasonable and necessary actions for the future. Usually as a first step, the mediator will meet with each team and perhaps also with its parent body or general membership. The mediator will listen carefuly to everyone, seeking understanding in depth of their real concerns and needs and of the positions of the group on the issues. The mediator’s main objective throughout is to enhance the possibility that the paties will come to understand better each other’s situation and proceed to hammer out a mutually acceptable settlement. From these, agendas are developed covering all matters which are to be addressed during the joint negotiations. All outstanding issues are open for negotiation. Joint mediation sessions, usually held at a neutral setting, seldom last longer than three hours, depending on the effectiveness of the session and the wishes of the participants. How many such sessions and what time span will be required to complete the agenda are difficult to predict. Much will depend upon the complexity of the issues, the severity of conflicting positions, and the determination of each team to find or create workable solutions. Where possible, it is sometimes desirable to hold the joint sessions in a concentrated time frame or on consecutive days. It often may be necessary to recess sessions for a time to consult with the parties or advisors, consider proposals, draft prospective agreements, or for other compelling reasons. During the mediation sessions any team or the mediator may request a caucus in order for the team members to consult with one another in private. The mediator is available to the teams during caucus for consultation, if desired. If a team wishes to discuss any matter with the mediator in confidence, such information will not be disclosed except as clearly authorized. Such communication is encouraged. The more fully the mediator is permitted to understand the real concerns and positions of each party, the more useful the mediator can become in raising questions or offering ideas which will help forge an agreement. In some situations, the mediator may find that better progress can be made in separate meetings with the respective teams than in joint sessions. Mediation sessions are closed to the news media and other outside parties, except for resource specialists or observers agreed to in advance. While mediation is under way, no participant or other person present may report or discuss the content of the proceedings or positions involved. This does not limit team members from conferring as need be from time to time with their parent body or key decision makers whom they represent. Usually the participants choose to have only the mediator respond to press inquires. FORMALIZATION OF AN AGREEMENT Matters finally agreed upon in mediation are set forth in a written document signed by the parties and witnessed by the mediator. Generally, the agreement includes provisions for ongoing local monitoring of the agreement’s implementation and procedures to be employed, including the use of CRS, in the event disagreements arise over execution of the accord. MEDIATOR STANDARDS OF CONDUCT CRS mediators recognize the critical and sensitive nature of their activities, and abide by the standards of conduct set out in the Code of Federal Regulations (28 CFR 45.735-2 et seq). CONCLUSION There can be no advance guarantee, or even assurance, that the parties will achieve agreement. The Community Relations Service, however, has successfully mediated cases throughout the country, involving a wide range of issues affecting minority racial or ethnic groups and communities. Often, the parties feel greater satisfaction with a solution that they have helped formulate and over which they have exerted control rather than one imposed on them. Further, a significant by-product of the process is that the parties come to understand each other in a much improved manner and are prepared to solve problems in the future on their own. Thus, not only have many of the problems taken to mediation been resolved without extensive litigation, but also the parties have witnessed constructive changes in attitudes, relationships, and conditions. RULES FOR MEDIATION 1. Definition of Mediation: Mediation is a process during which an impartial, neutral person, the mediator, facilitates communication between the parties in a dispute to assist reconciliation, settlement or understanding among them. The mediator may suggest ways of resolving the dispute but may not impose his or her own judgment on the issues for that of the parties. 2. Agreement of Parties: The parties involved in the mediation of the dispute agree to these rules by their signatures (Parties and attorneys will be asked to sign prior to mediation session). 3. Consent to Mediator: The parties consent to the appointment of the individual named as mediator in their case. The mediator may not, and will not, act as an advocate for any party to the mediation. 4. Conditions Precedent to Serving as Mediator: The Mediator shall not serve as mediator in any dispute in which he or she has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the Mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether the Mediator shall serve, the Mediator shall not serve. 5. Authority of Mediator: The Mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties achieve settlement. If necessary, the Mediator may also obtain expert advice concerning technical aspects of the dispute. Arrangements for obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall determine. 6. Commitment to Participate in Good Faith: While no one is asked to commit to settle his/her case in advance of mediation, all parties commit to participate in the proceedings in good faith with the intention to settle, if at all possible. 7. Parties Responsible for Negotiating Their Own Settlement: The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them. The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties. The Mediator does not warrant or represent that settlement will result from the mediation process. 8. Authority of Representatives: Each party representative agrees that he or she has authority to settle the dispute involved in the mediation and that all persons necessary to the decision to settle shall be present at the mediation. 9. Time and Place of Mediation: The mediation time and a convenient location agreeable to the Mediator and the parties as the Mediator shall determine. 10. Identification of Matters in Dispute: If requested, prior to the first scheduled mediation session, each party shall use his or her best efforts to provide the Mediator and all attorneys of record with an Information Sheet and Request for Mediation on the form provided by the mediator setting forth its position with regard to the issues that need to be resolved. 11. Privacy: Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator. 12. Confidentiality: Confidential information disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator. All records, reports or other documents received by a Mediator while serving in that capacity shall be confidential. The Mediator shall not be requested or compelled to produce or divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other proceeding: a) views expressed or suggestions made by
another party with respect to a possible settlement of the dispute; 13. No Stenographic, Audio or Video Tape Record: There shall be no stenographic record, tape-recording, or videotaping of the mediation process. 14. Termination of Mediation: The mediation shall be concluded: 15. Parties to Rely on Own Counsel: If the mediation is concluded by a settlement agreement, the parties are advised, and agree, to have the agreement independently reviewed by their own attorney and counsel before executing the agreement in final form. The parties understand and agree that the Mediator is not acting as an advocate for any party and each party states that they have not relied upon legal advice or counsel from the Mediator in entering into the settlement agreement. OTHER COMMON GROUND RULES FOR DISCUSSION SESSIONS I. The mediator will serve as the
convener and facilitator of the discussion session(s).
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