Resolution Conferences Conducted by the Utah Anti-Discrimination Division: The Elements of a Successful Administrative Mediation Program

by Michael A. Zody²

I. INTRODUCTION

The Utah Anti-Discrimination Division (UADD) is responsible for receiving and processing claims of employment discrimination in Utah. Between 1985 and 1993 the UADD's case load increased more than one hundred percent. Because of its increased case load, the UADD implemented a mediation program in the Spring of 1993. This program involves voluntary mediation conferences for all new cases. The mediation conferences occur within sixty days after the charging party files a discrimination charge, and the case does not progress until after the conference is held. The UADD's tracking statistics for 1994 show that twenty-six percent of its cases were settled through the mediation program.

This article provides an in-depth look at the UADD's mediation program. First, the article outlines the administrative context within which the mediation conferences take place. Second, it then examines the factors that make up the UADD's mediation program. Third, the article explains what happens in the mediation sessions, and how those sessions are conducted. Fourth, the article analyzes the performance of the mediation program through the UADD's tracking statistics. Fifth, it describes a new volunteer mediator program. Finally, the article ends with an evaluation of the factors which have contributed to the success and the problems of the mediation program.

II. OVERVIEW OF THE UADD ADMINISTRATIVE PROCESS

The UADD, a division of the Industrial Commission of the State of Utah,³ derives its authority from the Utah Anti-Discriminatory Act (UADA).⁴ The UADD makes it unlawful for an employer to discriminate on the basis of "race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, age, if the individual is 40 years of age or older, religion, or handicap."⁵ In addition to enforcing the UADA, the UADD also enforces certain federal discrimination laws pursuant to a work sharing agreement with the United States Equal Employment Opportunity Commission (EEOC).⁶ The work sharing agreement outlines the UADD's authority to receive and process discrimination charges under the following federal statutes: Title VII of the Civil Rights Act of 1964 (Title VII),⁷ the Age Discrimination in Employment Act of 1967 (ADEA),⁸ and the Americans With Disabilities Act of 1990 (ADA).⁹

The UADD's administrative process begins when a party files a discrimination charge. All claimants must file such claims under the UADA in order to exhaust their administrative remedies.¹⁰ The UADA requires that the charge must be filed within 180 days after the alleged discriminatory act.¹¹ If the charge is filed after this time, it is waived automatically to the EEOC's jurisdiction.¹² If the charge is filed within 180 days, the UADD attempts to schedule the voluntary mediation conference within sixty days.¹³ If the parties are unable to reach a settlement at this conference, the UADD begins its investigation.¹⁴ The UADD does not represent either party during the investigative phase.¹⁵ Instead, it gathers evidence it deems pertinent and determines whether there is reasonable cause that discrimination took place.¹⁶ Pertinent evidence includes position statements and relevant documents submitted by the party who filed the charge (the charging party) and the employer (respondent). The UADD investigator may also conduct interviews and visit sites. At the end of its investigation, the UADD issues either a "cause" or "no cause" Determination and Order.¹⁷ If it makes a "cause" finding, the UADD will schedule another voluntary mediation conference known as the "conciliation conference."¹⁸ Like the resolution conference, the conciliation conference gives the parties another opportunity to settle their dispute voluntarily.

However, if the parties cannot reach a settlement at the conciliation conference, either party may appeal the investigator's determination and file a request for a formal evidentiary hearing before an Industrial Commission administrative law judge (ALJ).¹⁹ Because evidentiary hearings are discretionary, the Industrial Commission may or may not grant the party's request.²⁰ If a hearing is granted, a discovery period ensues.²¹ After the discovery period and the conclusion of the hearing, the ALJ decides whether discrimination occurred.²² A party wishing to appeal the ALJ's decision must seek additional administrative review by the Industrial Commission Board.²³ A dissatisfied party may then file an appeal to the Utah Court of Appeals.²⁴

If the UADD determines that the respondent discriminated against the charging party, the UADD must "issue an order requiring the respondent to cease any discriminatory or prohibited employment practice and to provide relief to the complaining party, including reinstatement, back pay and benefits, and attorneys' fees and costs."²⁵ However, at any time before the UADD issues a final decision, the charging party can withdraw from the UADD administrative process.²⁶ Charging parties most often withdraw in order to pursue their claims under federal discrimination statutes, which provide broader remedies than the UADA. For instance, compensatory and punitive damages are available under Title VII and the ADA.²⁷

III. THE GENESIS AND THE DESIGN OF THE RESOLUTION CONFERENCE

From its inception, the UADD has had authority to conduct settlement conferences. The UADA provides that "[b]efore a hearing is set or held as part of any adjudicative proceeding, the commission shall promptly assign an investigator to attempt a settlement between the parties by conference, conciliation, or persuasion."²⁸ As a matter of policy, the UADD always encourages settlement during its investigation.²⁹ Historically, the UADD routinely scheduled "fact finding" conferences which it used not only to gather information, but also to attempt to negotiate a settlement.³⁰ However, prior to the spring of 1993, the UADD did not hold conferences for the sole purpose of mediation.³¹

During the early 1990's, the UADD was criticized about the time it took to process a claim. The UADD responded to the criticism by establishing the goals of accelerating its case work and eliminating its backlog while preserving the quality of the process.³² To accomplish these aims, the UADD hired a staff of contract investigators, who reduced the UADD's backlog, and the UADD instituted the mediation program.³³

The UADD thoroughly researched the mediation process before it designed its own mediation program. The UADD recruited a professional mediator to develop and operate the program.³⁴ The professional mediator analyzed mediation programs used by other state administrative agencies particularly those in Colorado and Pennsylvania and four EEOC pilot programs.³⁵ Drawing upon this research, the professional mediator presented the UADD staff with several models for the program. Eventually, the UADD adopted a model based upon the Colorado mediation program. The Colorado system relied upon existing investigative staff to conduct the mediations, rather than hiring external mediation providers.³⁶

The UADD wanted to design a mediation process that would quickly move the parties away from an adversarial posture and into one of resolution. To further this end, the UADD called the conference a "resolution" conference³⁷ rather than a settlement or mediation conference. The UADD wanted to eliminate any preconceived notions about mediation or settlement in connection with the adversarial process.³⁸The UADD also asked experts from the University of Utah and the United States Department of Justice to train UADD mediators.³⁹ Additionally, mediators included two senior investigators with employment discrimination expertise, and a professional mediator.⁴⁰

IV. THE MECHANICS OF THE RESOLUTION CONFERENCE

A. Scheduling the Conference
The UADD attempts to schedule the resolution conference within sixty days after the claimant files the charge of discrimination. A designated staff employee (conference scheduler) arranges these conferences.⁴¹ The conference scheduler sends the parties a "Notice of Resolution Conference" form letter,⁴² and a "Resolution Conference Fact Sheet," which includes a table that outlines relevant discrimination laws and available remedies.⁴³ The letter explains that the conference is voluntary and is held in an informal setting. The letter also states that the conference allows each party to present their position, and gives the parties the chance to reach a mutual agreement.⁴⁴

The "Resolution Conference Fact Sheet" explains several key aspects of the mediation program:

(1) the mediator's role is to facilitate communication and resolution, not to rule on the merits;

(2) all communications at the conference are confidential;

(3) the UADD does not represent either party and the resolution conference is not a formal hearing;

(4) each side will have an opportunity to state its position;

(5) each side can bring signed, notarized witness statements and up to two witnesses; and

(6) the parties can bring a "representative" (the words lawyer or attorney are not used) but each party is allowed only one spokesperson.⁴⁵

The fact sheet also asks the charging party to bring a detailed written statement outlining the basis of the claim and to bring any supporting documents. The resolution fact sheet advises the charging party to be prepared to identify all desired remedies and of resolving the charge to negotiate a compromise of the charge.⁴⁶

The resolution fact sheet lists benefits of resolving for both the charging party and the employer. It states that resolution of the charge obviates the need for an investigation, which can take up to eight months, the cuts off otherwise accruing employer back pay liability. Moreover, the fact sheet states that, because any agreement is voluntarily negotiated at this stage, it can include compensatory and punitive damages not ordinarily available under the UADA.⁴⁷

Because the conference scheduler is the contact for the parties, this employee plays a key role in the process.⁴⁸ The conference scheduler educates the parties about the process, particularly that the conference is not a forum for arguing the merits of the case.⁴⁹ At the same time, the conference scheduler explains to the parties that, although the conference is voluntary, it is in their best interest to attend.⁵⁰

B. Meeting the Parties and Setting the Tone
Whether the parties resolve their dispute greatly depends on the tone of the conference. Knowing this, the UADD mediators pay close attention to meeting the parties and introducing the mediation program. The mediator want the parties to relax, to understand the conference procedure, and to realize that resolving the problem at the conference is in their own best interest.⁵¹

Consequently, the first step for the mediator is to "meet, seat, and greet the parties."⁵² If possible, the mediator attempts to seat one party in the room and then brings in the other party just before the conference begins.⁵³ The mediator places the parties on opposite sides of the table and takes a seat at its head.⁵⁴ If one of the parties is reluctant to meet fact to face, however, the mediator seats the parties in separate rooms and walks back and forth between the parties.⁵⁵ Second, the mediator welcomes the parties to the conference and acknowledges their willingness to try and resolve their problem.⁵⁶ To get the parties to relax and be less formal, the mediator use the parties' first names.⁵⁷

C. Explaining the Conference Process and Litigation Possibilities if a Resolution is Not Reached
The next step is for the mediator to explain the conference process, always with an eye towards assisting the parties in resolving their dispute.⁵⁸ The mediator explains that the conference is entirely voluntary.⁵⁹ It is a chance for the parties to share their concerns and work together to develop options for resolving their dispute.⁶⁰ The mediator explains that the conference is participatory and controlled by the parties and that it is informal and confidential.⁶¹ The mediator explains that what is said in the conference is not included in the investigation and that the mediator plays no role in the investigation.⁶² The mediator makes it clear that the mediator will not rule on the merits of the case.⁶³ Instead, the mediator is there as an impartial third party to help the parties resolve their dispute.⁶⁴

One of the key points of persuasion for the mediator is explaining what will happen if the parties do not resolve their dispute.⁶⁵The mediator explains that if the parties fail to reach a resolution, the mediator will send the case on to investigation.⁶⁶ At that point in time, assuming sixty days have passed since the charge was filed, the charging party can ask for a Notice of Right to Sue from the EEOC and then has ninety days to file the case in court.⁶⁷ The other option is for the charging party to leave the case with the UADD and let the UADD investigate the claim.⁶⁸ The investigator explains that the average time for the investigation is six to eight months and that the average time for litigation in the courts is two to three years.⁶⁹

The mediator also explains what will happen if the case moves into the investigation phase.⁷⁰ The mediator explains that at the end of the investigation the UADD issues a "cause" or "no cause" finding and that the parties have thirty days to file a written notice of appeal.⁷¹ The mediator informs the parties that if the appeal is granted, there will be an evidentiary hearing before an administrative law judge.⁷² The mediator explains that, under the UADA, "whole relief" to the charging party can include back wages and benefits, reinstatement, expungement of the charging party's personnel file, neutral references, a letter of apology and attorneys' fees.⁷³ The mediator explains that under the UADA, the UADD cannot award compensatory or punitive damages, but that the parties can include any amount or type of relief in any negotiated resolution.⁷⁴

D. Setting the Ground Rules for the Conference
Once the parties are seated and have a general understanding of the conference's purpose, the mediator lays out the ground rules.⁷⁵ The mediator states that while both parties will have a chance to explain their positions and concerns only one may speak at a time without interruptions from the other side.⁷⁶ However, the mediator reserves the right to interrupt the speaker.⁷⁷ Any questions are directed to the mediator.⁷⁸ The mediator also explains that the parties may be separated into individual caucuses, which are confidential.⁷⁹ The mediator reminds the parties that the conference is neither to be used for discovery nor arguing the merits. Additionally, the mediator asks the parties to limit their note taking.⁸⁰ If a party is accompanied by counsel, the mediator asks counsel to allow the represented party to speak.⁸¹ The mediator then expresses the hope that both parties are committed to resolving their dispute and requests the parties voice this commitment.⁸² Lastly, the mediator asks the parties if they still agree to use the mediator.⁸³

E. Conducting the Mediation
The mediator then starts the mediation session.⁸⁴ The mediator first asks the charging party to make the first statement of concerns and issues.⁸⁵ After the charging party is finished, the mediator summarizes the issues and asks the charging party to confirm this summary.⁸⁶ The mediator then asks the employer to make a statement of concerns and issues.⁸⁷ Again, the mediator summarizes the employer's issues and asks the employer to confirm this summary.⁸⁸ Next the mediator asks the charging party, and then the employer, if they have any follow-up questions or concerns.⁸⁹

At this point, the mediator often separates the parties for individual caucuses.⁹⁰ During the caucus sessions, the mediator discusses the strengths and the weaknesses of each party's case.⁹¹ The mediator may play devil's advocate as a way to reveal weaknesses in the parties' positions which they have failed to appreciate.⁹² Additionally, the mediator may reemphasize the likely expense and time commitment the parties will face if they are unable to resolve the case at this stage.⁹³ Once the mediator has completed the caucus sessions, unless emotions are too charged, the parties return to the same room to close the conference.⁹⁴

F. Closing the Conference
If an agreement is reached, the mediator prepares the necessary documents to settle the case and has the parties sign it.⁹⁵ If the parties could not resolve their dispute, the mediator reiterates that the investigation will begin unless the charging party petitions the EEOC for a Notice of Right to Sue.⁹⁶ Regardless of the outcome, the mediator thanks the parties for attending the conference and acknowledges their efforts.⁹⁷ The mediator closes by asking the parties to complete evaluation forms on the conference.⁹⁸

V. PERFORMANCE OF THE MEDIATION PROGRAM

The UADD began keeping statistics on the mediation program in February of 1994.⁹⁹ Although these statistics are limited, they provide a good picture of the UADD's ability to encourage early resolutions and to reduce its own workload. The statistics also show the mediated settlements average dollar amount.

From the beginning of February through the end of September of 1994, the UADD received 573 charges of discrimination.¹⁰⁰ Of those charges, sixty-three were automatically waived to the EEOC.¹⁰¹ This left a total of 510 cases with the UADD for which resolution conferences could be scheduled.¹⁰² During this same time frame, the UADD's statistics show that is closed 216 cases at the resolution conference stage.¹⁰³ Of the 216 tot>al resolutions, 133 represent settlements mediated by the UADD.¹⁰⁴The remaining 83 cases resulted in withdrawals by the charging party; dismissals based upon jurisdictional grounds;¹⁰⁵ and other dismissals as a result of the conferences.¹⁰⁶ The UADD has thus been able to successfully mediate twenty-six percent of its total workload.¹⁰⁷

The UADD's records also track the average dollar amount of the settlements reached in the conferences. Out of the 133 total settlements, ninety-three (or seventy percent) involved employer payments to the charging party.¹⁰⁸ The average settlement amount equaled $3,796.31; and the total dollars paid equaled $353,057.14.¹⁰⁹ The forth-three nonmonetary settlements included, among other things, apologies and letters of recommendation.¹¹⁰

By successfully mediation at least twenty-six percent of its caseload, the UADD reallocated resources, which would have otherwise been spent investigation those cases, to other areas such as conducting Equal Employment Opportunity training for Utah employers and reducing the UADD's backlog.¹¹¹ At the same time, charging parties and employers benefit from early, party-controlled resolutions which save the time, expense, and disruption caused by litigation. Additionally, the resolution conferences also educate charging parties and employers about the law and how to interact better in order to avoid future discrimination claims.

VI. VOLUNTEER MEDIATOR PROGRAM BEING IMPLEMENTED BY THE UADD

With the successful implementation of the UADD mediation program, a new problem arose the need for more mediators to conduct the resolution conferences. Because of a lack of resources, the UADD considered using volunteer professionals as mediators. Volunteer mediators could come from areas other than Salt lake City where the UADD office is located.¹¹² Volunteer mediators also might be available during evenings and Saturdays to meet the scheduling needs of individual charging parties and small employers. In addition, volunteer mediator participation in the resolution conferences support further understanding of the UADD mediation program and promote the public policy which favors early dispute resolution.¹¹³

A. Steering Committee
The UADD formed an ad hoc steering committee to establish a volunteer mediator pool. The steering committee numbers reflected a variety of constituencies that the UADD hoped might act as volunteer mediators: plaintiff's employment counsel, defendant's employment counsel, an ADR expert, a human relations professional, an employer representative, an employee representative, a union representative conducting research on the UADD mediation program was also included.¹¹⁴ The theme for the steering committee was to maintain the integrity of the established resolution conference program.

B. Recruiting and Screening
The steering committee recruited volunteer mediator candidates from a variety of backgrounds including community organizations, colleges and universities, business organizations, and professional and legal groups. The committee identified a qualified candidate as:

[A] person who has a sincere interest in mediating, a diverse educational and experience background, the ability to remain impartial, and a willingness to attend our two-day training program. Preference will be given to those individuals that have training in mediation and/or experience in employment law.¹¹⁵

The requirements for application were a current resume, one letter of recommendation and a one page statement of the individual's interest in the volunteer mediator program. All candidates participated in a two-day training program which consisted of mediation techniques and employment law theory, and practical applications. Upon completing the program, each candidate participated in three mediations with the help of a qualified mediator. Furthermore, applicants were told that they must conduct a minimum of three mediations within the first year.

The screening subcommittee received more than sixty applications. Although some applicants had strong mediation or employment conflict experience, the UADD expected everyone to participate in the entire training program.¹¹⁶ The screening subcommittee identified thirty-seven individual who met the qualifications and who were able to attend the two-day training program. Of that number fourteen individuals were lawyers, two applicants were paralegals, and the remaining volunteers were professionals in colleges, in business or in community organizations.

C. Training
Several members of the UADD's original steering committee, which included the coordinator of the UADD mediation program, the ADR expert, and the plaintiff's and defendant's employment lawyers, developed the training program. The director of the state court ADR program also assisted with the planning. This group developed a program that merged mediation concepts with legal content so that participants could learn and experience mediation principles in an employment dispute context. Two ADR consultants conducted this program which consisted of four training modules and two special sessions. One expert was the state court judge who chairs the ADR Subcommittee of the Judicial Counsel which will oversee the state court ADR program.¹¹⁷ The second expert, James Holbrook, practices law extensively in ADR.¹¹⁸

The first training module consisted of an overview of negotiation and mediation with emphasis on mediation as interest-based. Litigation negotiation, and mediation were also compared. A commissioner from the Utah Industrial Commission discussed the UADD administrative process, its authority in relationship to the EEOC, and remedies and enforcement under the UADA. The trainees then broke into small groups and practiced opening statements. The trainees explained case processing and established mediators at the simulated conference.

The second module emphasized the mediator's functions. Instructors focused on communication skills, questioning skills, issue development skills, and cultural issues. The second segment of this module trained participants about employment law issues. An understanding of the issues provided the trainee a better foundation for future resolution conference discussions.

The instructors covered the ADA,¹¹⁹ and discussed relevant legal issues such as reasonable accommodation within the mediation context. After the lectures, the trainees simulated a conference which involved a hypothetical charge of discrimination under the ADA. The trainees divided into small groups, assumed specific characters, and conducted mediations.

The third module involved common mediation problems such as the mediator's control of the conference. Further, the instructors discussed the purpose of caucus.¹²⁰ The legal segment consisted of a review of the ADEA.¹²¹ A simulation followed, which used a hypothetical charge of age discrimination under a caucus setting.

The final mediation module segment dealt with techniques for breaking stalemates. The legal segment covered the law on sexual harassment. The trainee simulation focused on breaking deadlocks and on resolving the dispute in the context of a sexual harassment charge. The trainees also discussed other issues such as the award of attorneys' fees, the tax consequences of settlement payments, and the effect of an unqualified reinstatement offer on back pay awards. Additionally, the trainees discussed compensatory and punitive damages, constructive discharges, and nonemployee claims.

D. In-Service Program
Before they can conduct their own mediations, volunteers must participate in three co-mediations with experienced mediators. An experienced mediator also observes and comments upon at least two mediations conducted by each volunteer mediator. The UADD plans to conduct regular evaluations of volunteer mediators and on-going evaluations of the volunteer mediator program. In addition, the steering committee¹²² will collect data regarding the results of the volunteer mediator program and provide an analysis to the UADD and the Industrial Commission.

VII. FACTORS CONTRIBUTING TO THE SUCCESS OF THE UADD'S MEDIATION PROGRAM

The UADD staff, the authors, and other participants have identified several factors which contribute to the mediation program's success. Those factors are: (1) the design of the program and the performance of the mediators; (2) the expense of litigating discrimination claims; (3) the early timing of the conference; (4) the opening of communication channels; (5) the limited attorney involvement; and (6) the assurances of confidentiality.

A. Program Design and Mediator's Performance
The UADD's specific program design along with the mediator's performance may contribute to the program's success. The program educates the parties about the benefits of a quick resolution. The "Notice of Resolution Conference" letter informs the parties that the conference will provide them with an opportunity to explain their positions. The "Resolution Conference Fact Sheet" highlights that a successful conference obviates a lengthy investigation and negates accruing backpay liability. The fact sheet also informs the parties that an agreement is voluntarily negotiated and can include compensatory and punitive damages. These aspects of the program's design aim to encourage the parties to participate in the no-cost mediation session.¹²³

Once the parties are at the mediation session, the mediator's skills may help foster the program's success. Through their intense training, the mediators are impartial experts in resolving employment disputes. The mediators review the parties' positions and point out strengths, weaknesses, and risks that the parties face. Additionally, the mediators' experience in resolving discrimination claims provides them with the knowledge of compromise options, and the ability to identify the parties interests.¹²⁴

B. The Expense of Litigating Discrimination Claims
Another factor which contributes to the success of the mediation program is the expense the parties may incur if they do not resolve the case. These expenses include litigation expenses, time spent working on the case, and also the employer's risk of potentially large damage awards should the case go to court. The UADD staff thinks that the Civil Rights Act of 1991, which sanctioned compensatory and punitive damages, compels employers to resolve cases earlier in the process.¹²⁵

C. The Timing of the Conference
Because employees must file a claim within 180 days of the alleged discriminatory act and the UADD attempts to schedule the mediation conference within sixty days of the filing, the resolution conference occurs early in the case. Therefore, the employee's potential damages, such as backpay and lost benefits, are relatively small. The early conference also allows the employer to focus on smaller numbers to establish an initial offer.¹²⁶ Scheduling the conference early brings the parties together before they become unwilling to consider various options which might resolve their dispute.¹²⁷

D. The Opening of Channels of Communication
The communication aspect of the mediation program is another factor which may influence the program's success. In several instances the UADD mediators found that charges were filed by employees because they did not understand their employers' actions, especially in reduction-in-force cases. The mediators are able to resolve some of these cases by serving the same purpose that a thorough exit interview by the employer would have served.¹²⁸ Opening communication can also allow the employer to learn the employee's real concerns for the first time and perhaps address those problems.

E. The Limited Attorney Involvement
The UADD does not encourage attorney involvement in the mediation process. In its Resolution Conference Fact Sheet, the UADD tells the parties that they can bring a representative, but the UADD does not use the words "attorney" or "lawyer". During the mediation session, the mediator asks attorneys to permit the parties to talk and not to take notes.¹²⁹ The UADD mediators have found that in some cases when a party consulted with an attorney before the mediation session, a party had unrealistic expectations about the strengths of the case. This position impedes the mediator's ability to resolve the case.¹³⁰

F. The Assurance of Confidentiality
The parties are assured that their negotiations will remain confidential. The confidentiality message is emphasized to the parties at each stage in the proceeding, and the parties are told that the mediator plays no role in the investigation. This assurance allows the parties to fully explore settlement options without the burden of being bound by the positions they take during the mediation sessions.¹³¹

VIII. PROBLEMS WITH THE UADD'S MEDIATION PROGRAM

Notwithstanding the apparent success of the UADD mediation program, it does have some problems. One problem the UADD staff identified was the lack of prescreening.¹³² At present, the UADD has not mechanism to eliminate parties who do not want to resolve their claims but who want to use the resolution conference as a means to do quick, inexpensive discovery.¹³³

Another problem acknowledged by the UADD staff is that the UADD may be accused of negotiating away important rights of individuals.¹³⁴ One response to this criticism is that the program is entirely voluntary. The parties are never precluded with or without the assistance of the program from resolving their claims through a settlement.¹³⁵ Furthermore, the UADD mediators will not encourage a settlement if an unrepresented charging party has a strong case.¹³⁶

CONCLUSION

The UADD resolution conference program provides no cost professional mediation for discrimination claims in their early stages. The twenty-six percent settlement rate suggests that the program is meeting the goals of assisting the parties in resolving disputes without litigation and reducing the investigation caseload for the UADD. However, the UADD should gather and compare more date to evaluate fully the program's success. For example, follow-up interviews with attending parties could provide valuable information about the factors which contributed or hindered the resolution of their dispute and which may improve the program's effectiveness.

The current ADR program's success has encouraged the use of volunteer mediators. Whether the expansion of the volunteer program will likely increase the rate of resolutions depends on the availability of mediation or other factors discussed by the authors such as program design and mediator expertise. Another issue raised by the introduction of volunteer mediators is whether the quality of the resolution conferences can be maintained using less experienced mediators from outside the UADD.

Footnotes

² Michael A. Zody is a shareholder with the law firm of Parsons Behle & Latimer in Salt Lake City, Utah. His practice focuses upon employment and labor law litigation and counseling clients on employment matters.
³ Utah Code Ann. § 34-35-3 (1994). ("There is hereby created a division of the commission to be known and designated as the Utah Antidiscrimination Division, which division shall be under the jurisdiction and direction of the commission."). Id.
⁴ Id. § 34-35-1 to -9.
⁵ Id. § 34-35-6(1)(b)(i).
⁶ Work Sharing Agreement between Utah Anti-Discrimination Division and Equal Employment Opportunity Commission for Fiscal Year 1994, effective October 1, 1993 through September 30, 1994 (Work Sharing Agreement) (on file with the authors).
⁷ 42 U.S.C. § 2000e to 2000e-17 (1988 & Supp. V 1993).
⁸ 29 U.S.C. § 621-34 (1988 & Supp. V 1993).
⁹ 42 U.S.C. § 12101-12213 (Supp. V 1993).
¹⁰ Utah Code Ann. § 34-35-7.1(1)(a), (15), (16) (1994).
¹¹ Id. § 34-35-7.1(1)(c).
¹² See supra note 4 and accompanying text.
¹³ Memorandum from Michael A. Zody to File (Oct. 1994) (on file with author) (Zody Memorandum).
¹⁴ Utah Code Ann. § 34-35-7.1(3)(b) (1994) ("If no settlement is reached, the investigatory shall make a prompt impartial investigation of all allegations made in a request for agency action"). Id.
¹⁵ Id.
¹⁶ Utah Code Ann. § 34-35-7.1(3)-(5) (1994).
¹⁷ Id. § 34-35-7.1(4)(b), (5).
¹⁸ Id. § 34-35-7.1(10); Zody Memorandum.
¹⁹ Id. § 34-35-7.1(4)(c), (5)(c).
²⁰ Id.
²¹ Utah Code Ann. § 63-46b-7 (1993).
²² Utah Code Ann. § 34-35-7.1(8), (9) (1994)
²³ Id. § 34-35-7.1(11); Utah Code Ann. §63-46b-12(1) (1993).
²⁴ Utah Code Ann. § 34-35-7.1(12); Utah Code Ann. §63-46b-16(1) (1993); Utah Code Ann. § 78-2a-3(2)(a) (Supp. 1994).
²⁵ Utah Code Ann. § 34-35-7.1(9) (1994).
²⁶ Id. § 34-35-7.1(3)(d).
²⁷ Civil Rights Act of 1991, 42 U.S.C. § 1981a(a), (b)(Supp. V 1993).
²⁸ Utah Code Ann. § 34-35-7.1(3)(a) (1994).
²⁹ Zody Memorandum.
³⁰ Id.
³¹ Id.
³² Id.
³³ Id. Some commentators have acknowledged that the use of alternative dispute resolution (ADR) methods can benefit administrative agencies by enabling them to reduce burgeoning administrative litigation dockets. See generally Douglas A. Riggs & Elizabeth K. Doorman, Federal Agencies' Use of Alternative Means of Dispute Resolution, 1 Admin. L.J. 125, 126-30 (1987) (stating that the use of ADR within the administrative context can reduce caseloads and allow agencies to focus their efforts upon more complex cases); Wallace Warfield, The Implications of Alternative Dispute Resolution Processes for Decisionmaking in Administrative Disputes, 16 Pepp. L. Rev. S93, S96 (1989) (suggesting that increased use of ADR in the administrative process would allow agencies to focus their efforts upon issues of higher precedential value).
³⁴ Zody Memorandum.
³⁵ Id.
³⁶ Id.
³⁷ Id.
³⁸ Id.
³⁹ Id.
⁴⁰ Id.
⁴¹ Id.
⁴² Resolution Conference Notice form the Industrial Commission of Utah (Resolution Conference Notice) (on file with the authors).
⁴³ Resolution Conference Fact Sheet (Resolution Fact Sheet) (on file with the authors).
⁴⁴ Resolution Conference Notice.
⁴⁵ Resolution Fact Sheet.
⁴⁶ Id.
⁴⁷ Id.
⁴⁸ Zody Memorandum.
⁴⁹ Id.
⁵⁰ Id.
⁵¹ UADD's Resolution Conference Guidelines (Resolution Guidelines) (on file with the authors).
⁵² Id.
⁵³ Id.
⁵⁴ Id.
⁵⁵ Id.
⁵⁶ Id.
⁵⁷ Id.
⁵⁸ Resolution Guidelines.
⁵⁹ Id.
⁶⁰ Id.
⁶¹ Id.
⁶² Id.
⁶³ Id.
⁶⁴ Id.
⁶⁵ Id.
⁶⁶ Id.
⁶⁷ Id.
⁶⁸ Id.
⁶⁹ Id.
⁷⁰ Id.
⁷¹ Resolution Guidelines.
⁷² Id.
⁷³ Id.
⁷⁴ Id.
⁷⁵ Id.
⁷⁶ Id.
⁷⁷ Id.
⁷⁸ Id.
⁷⁹ Id.
⁸⁰ Zody Memorandum. In addition to an attorney, the charging party is sometimes accompanied by a family member who is also permitted to be present. The employer may be represented by the business owner, in-house counsel, a human resources professional or an operations manager. The parties may also bring a witness who is usually excluded from the session except while making a statement. Id.
⁸¹ Resolution Guidelines.
⁸² Id.
⁸³ Id.
⁸⁴ Id.
⁸⁵ Id.
⁸⁶ Id.
⁸⁷ Id.
⁸⁸ Resolution Guidelines.
⁸⁹ Id.
⁹⁰ Id.
⁹¹ Id.
⁹² Zody Memorandum.
⁹³ Id.
⁹⁴ Resolution Guidelines.
⁹⁵ If the parties want to add terms to the signed UADD Agreement, they must prepare and attach an addendum to that Agreement. However, the UADD has no authority over these additional terms. Zody Memorandum.
⁹⁶ Resolution Guidelines. See supra notes 63 & 64 and accompanying text.
⁹⁷ Resolution Guidelines.
⁹⁸ Id. As mentioned in Section I (Overview of the UADD Administrative Process), if the case goes through the investigation and there is a "cause" finding, the UADD may schedule another voluntary mediation conference known as the conciliation conference. The procedure at this conference is similar to the procedure governing the resolution conference. One difference is that because there has been a "cause" finding, the charging party has more leverage than it had at the resolution conference. Zody Memorandum.
⁹⁹ Zody Memorandum.
¹⁰⁰ Id.
¹⁰¹ Id. These include charges filed after the 180 day limitations period under the UADA and charges under the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1988), which are automatically waived to the EEOC under the Work Sharing Agreement. See also Work Sharing Agreement.
¹⁰² Zody Memorandum.
¹⁰³ Id.
¹⁰⁴ The UADA applies only to employers with fifteen or more employees. See Utah Code Ann. § 34-35-2(7) (1994).
¹⁰⁵ Id.
¹⁰⁶ Zody Memorandum.
¹⁰⁷ Id.
¹⁰⁸ Id.
¹⁰⁹ Id.
¹¹⁰ Id.
¹¹¹ Id.
¹¹² Id. Regular UADD mediators conduct resolution conferences in other areas of the state from time to time but usually attempt to schedule them on the same day to make the travel efficient and economical. A volunteer mediator in the same area could conduct a conference earlier and at the convenience of the parties.
¹¹³ Id. Since many nonlawyers are part of the UADD staff, the agency was amenable to planning a volunteer program that involved nonlawyers.
¹¹⁴ Id. The membership in the ad hoc steering committee for the volunteer mediator program was somewhat similar to the membership of the governor's advisory counsel for the UADD. See Utah Code Ann. § 34-35-4.5 (1994) (establishing a volunteer advisory counsel for the UADD consisting of one small business representative, one employer representative, one labor representative, one Utah State Bar representative, and members to represent all classes protected from discrimination under the UADA).
¹¹⁵ Zody Memorandum.
¹¹⁶ Id. This program is consistent with the models used by other non-profit agencies. See generally Joseph B. Stulberg, Training Intervenors For ADR processes, 81 KY. L.J. 977, 981 (1992-93) (explaining that where the potential mediators represent a broad range of societal groups, the diversity of their backgrounds "means that only limited assumptions" can be made regarding the consistency of their "prior training and their familiarity with legal and social systems as well as with the lifestyles and problems of the serviced constituency."). Id.
¹¹⁷ The state court annexed ADR program goes into effect in January 1995 and is authorized under Utah Code Ann. § 78-31b-1 to -9 (Supp. 1994). The federal court ADR program took effect in January 1994.
¹¹⁸ James Holbrook also helped design the training program for the federal court program.
¹¹⁹ See supra note 7.
¹²⁰ For example, six questions for a party's own case are: What are the strengths of your case? What are the weaknesses of your case? What are your needs that must be met in order for you to settle this case? If the case does not settle what will you do? If the case does not settle what will it cost you in money, time, hassle, etc. to go forward? Do you have any critical deadlines concerning settlement? The six questions for the opponent's case are: What are the strengths of your opponent's case? What are the weaknesses of your opponent's case? What are your opponent's prioritized needs that must be met in order for your opponent to settle this case? If the case does not settle what will your opponent do? If the case does not settle what will it cost your opponent in money, time, hassle, etc. to go forward? Does your opponent have any critical deadlines concerning settlement?
¹²¹ See supra note 6.
¹²² See supra Section VI and accompanying text.
¹²³ The fact that the mediation service is free may also contribute to the program's success.
¹²⁴ For example, in disability discrimination cases there may be several ways an employer can accommodate an employee's disability. The mediators have experience with this issue and can help to arrange different types of accommodations which the parties have not considered. Zody Memorandum.
¹²⁵ Id.
¹²⁶ Id.
¹²⁷ See Warfield, 16 Pepp. L. Rev. at S101 (noting that the use of ADR in the administrative context may not be as effective if it is applied late in the process after the parties' positions have solidified).But see Paul H. Tobias, Alternative Dispute Resolution as an Alternative to the Litigation of Non Union Employee Claims of Illegal Termination 1 (Apr. 6, 1994) (stating that one obstacle to settlement through mediation is that mediation often takes place too early, before the facts are discovered and while emotions are still charged). This was a paper presented for the Commission on the Future of Worker-Management Relations, April 6, 1994, in a U.S. Department of Labor meeting, Washington, District of Columbia. The general topic of the meeting was "Resolution of Workplace Problems by the Parties Themselves or Through Alternative Dispute Resolution (AD) Methods, Rather than Through Recourse to Litigation in Regulatory Bodies." Id. at 1 n. 1.
¹²⁸ Zody Memorandum.
¹²⁹ Id.
¹³⁰ Id. See Warfield, 16 Pepp. L. Rev. at S98 (stating that in government contracting disputes, the requirement that contracting officers consult with attorneys before reaching decisions can inhibit settlements at the contracting officer level); Tobias, supra note 125, at 14 ("One of the problems is that lawyers spend most of their time in combat' roles. Lawyers who are trial oriented, are often ill-equipped to be sensitive negotiators. Lawyers get very little training in the art of negotiation."). Id.
¹³¹ See Mark R. Sherman, Streamlined Mediation: Alternative to Litigating Discharge Disputes, 46 Arbitration Journal 34, 35-36 (mar. 1991) (stating that one of the requirements for a successful mediation program in employment discharge cases is that the mediation be entirely confidential).
¹³² Zody Memorandum.
¹³³ Id.
¹³⁴ Id.
¹³⁵ See generally Tobias, supra note 125 at 7 (stating that from a plaintiff's lawyer's perspective mediation is the preferred ADR alternative, in part because it is voluntary and party-controlled).
¹³⁶ Zody Memorandum.