1. (a) Voluntary Pre-Determination Mediation.

   1. (1) The department may, but is not required to, offer the parties to a complaint the opportunity to participate in voluntary pre-determination mediation with the dispute resolution division.
   2. (2) Parties to a complaint may request referral to the dispute resolution division for voluntary pre-determination mediation but the department is not required to make the referral. Factors considered by the department when determining whether to make a referral to voluntary pre-determination mediation include, but are not limited to: department resources, whether the complaint affects a group or class of individuals, mediator availability, and the department's interest in redressing and preventing civil rights violation in a public matter as a public prosecutor.
   3. (3) Only the director, chief counsel, assistant chief counsel in the legal division, or their designee may approve any high priority complaint, as described in sections 10029(b) and 10061(b) of these regulations, or group or class complaint being referred to a voluntary pre-determination mediation.
   4. (4) After a complaint is accepted by the dispute resolution division, the division may assign the complaint to a mediator employed by the department or a volunteer mediator, based on mediator availability and the dispute resolution division's discretion.

   5. (5) All parties to a voluntary pre-determination mediation and their representatives, if any, as well as the CRD mediator or volunteer mediator, must agree in writing to the following as a condition of participation in mediation:

      1. (A) The parties agree to the confidentiality provisions in subsection (c) of this section;
      2. (B) The parties agree to mediate because they have a sincere desire to resolve the complaint;
      3. (C) By participating in the mediation, no party is admitting guilt or wrongdoing;
      4. (D) The mediator assigned by CRD may upon request by any party or a department representative allow other people to participate in the mediation if in the mediator's judgment it would be beneficial to the mediation process; and
      5. (E) The parties and their representatives are prohibited from making audio, video, and photographic recordings throughout the mediation process.
   6. (6) Whenever a complainant or respondent is represented by an attorney or advocate, the assigned mediator shall communicate with the party's attorney or advocate regarding scheduling and settlement. Parties may receive automated emails that they may disregard or forward to counsel.
   7. (7) Regardless of whether the department refers a complaint to the dispute resolution division before or after investigation has commenced, the department will suspend pursuit of investigative discovery from the respondent(s) while the complaint is with the dispute resolution division. However nothing in this subdivision precludes the department and the respondent(s) from agreeing to the voluntary production of information while a case is pending with the dispute resolution division.
   8. (8) A department representative outside of the dispute resolution division may elect to participate in a voluntary pre-determination mediation to ensure that relevant information obtained by the department in the investigation is presented, and that the department's interest in redressing and preventing civil rights violations is addressed. Any such department representative must agree in writing to the same terms set forth in subdivision (5) of subsection (a).
   9. (9) If mediation is declined or is unsuccessful, the department shall commence, resume, or complete the investigation as necessary.

2. (b) Mandatory post-determination mediation.

   1. (1) If the department determines that there is reasonable cause to believe that a law it enforces has been violated, the department shall require the parties to participate in a mandatory post-determination mediation in an effort to resolve the dispute without litigation. The department will schedule the mandatory post-determination mediation prior to filing a civil action unless, in the department's discretion, circumstances warrant filing the civil action without scheduling a mandatory post-determination mediation.
   2. (2) A legal division attorney shall participate in any post-determination mediation or settlement discussion conducted before or after a civil action is filed. A legal division attorney must approve and sign any settlement agreed to in a post-determination mediation or settlement discussion.

   3. (3) All parties to a mandatory post-determination mediation and their representatives, if any, as well as the CRD mediator or volunteer mediator, must agree in writing to the following as a condition of participation in mandatory post-determination mediation:

      1. (A) The parties agree to the confidentiality provisions in subsection (c) of this section;
      2. (B) By participating in the mediation, no party is admitting guilt or wrongdoing;
      3. (C) The mediator assigned by CRD may upon request by any party or a department representative allow other people to participate in the mediation if in the mediator's judgment it would be beneficial to the mediation process; and
      4. (D) The parties and their representatives are prohibited from making audio, video, and photographic recordings throughout the mediation process.

3. (c) Confidentiality.

   1. (1) Communications, notes, and records generated during the course of or for purposes of a mediation that are exchanged between a mediator and the parties to a mediation and that relate to the parties' settlement positions and negotiations are confidential, consistent with California Evidence Code sections 1115 through 1129.

   2. (2) A mediator may disclose confidential information that a party shares during the course of a mediation in the following circumstances:

      1. (A) With the authorization of the party or their representative;
      2. (B) When operationally or ethically necessary, a mediator may discuss the mediation process with a co-mediator, the deputy director of dispute resolution or their designee, or dispute resolution division administrative staff, who will maintain the confidentiality of the mediation process.

   3. (3) The following categories of information generated during the course of or for purposes of mediation are not confidential:

      1. (A) Communications and records that only address scheduling and do not otherwise contain any substantive information about the parties' respective settlement positions;
      2. (B) Communications and records relating only to the fact of a party's participation or non-participation in mediation;
      3. (C) Whether a party agreed to mediate and the executed versions of any agreement to mediate and any confidentiality agreement, including any agreement completed pursuant to subsection (a)(5) or (b)(3);
      4. (D) Documentation of compliance with a settlement agreement provided by a party, except to the extent that the written settlement agreement provides for confidentiality of a party's name and/or the amount of monetary relief and such confidentiality is permitted by law;
      5. (E) Any log maintained in the mediation case record showing dates of communications and the general subject of the communications between the mediator, dispute resolution division staff, and the parties and representatives; and
      6. (F) A threat of imminent physical harm or physical harm made by a party or their representative.

   4. (4) Settlement agreements reached through the department's conciliation processes, including mediation in the dispute resolution division, are not confidential documents and are public records, except:

      1. (A) An individual complainant may choose to keep their name confidential as part of a settlement agreement unless disclosure is required by law. When an individual complainant chooses to keep their name confidential, the department will redact the complainant's name before publicly disclosing the settlement agreement or information about the settlement agreement under the Public Records Act or for any other purpose, with the exception that the department shall disclose the complainant's name to HUD or EEOC if the case is dual-filed with HUD or EEOC.
      2. (B) The parties to a voluntary pre-determination mediation may negotiate a term making the amount of any monetary recovery confidential unless disclosure is required by law. If the amount of monetary recovery is made confidential, the department will redact the monetary term before publicly disclosing the settlement agreement or information about the settlement agreement under the Public Records Act or for any other purpose, with the exception that the department shall disclose the amount of monetary recovery to HUD or EEOC if the case is dual-filed with HUD or EEOC.
      3. (C) The deputy director of the dispute resolution division or their designee may approve a term designating as confidential a portion of a settlement agreement, but not the entire agreement. Such approval will be limited to exceptional and unusual circumstances such as, for example, where the department has concluded that public disclosure of a settlement term could endanger a party and where disclosure is not required to further the purpose of the laws the department enforces or otherwise required by law.
      4. (D) If the parties agree to keep a party's name or amount of monetary recovery confidential under paragraph (A) or (B), CRD may disclose this information as compelled by law, as necessary to enforce the terms of the settlement agreement, or in the event that CRD needs to reopen the case.
   5. (5) Subject to the other provisions of this subsection (c), communications, notes, and records generated during the course of or for purposes of a mediation and in the possession of the dispute resolution division shall be maintained in such a way as to not be accessible by CRD staff in the legal division or enforcement division or who are otherwise engaged in enforcement actions of the department.

4. (d) Required Settlement Agreement Components.

   1. (1) All CRD-mediated settlement agreements shall be reduced to writing, signed by all parties, and the department shall act as a signatory pursuant to Government Code section 12964. All CRD-mediated settlement agreements shall include affirmative relief and shall include the development of policies or practices to prevent future discrimination, harassment, retaliation, or other unlawful practices. The mediator may assist parties to select the affirmative relief that is best suited to the complaint at issue. The settlement agreement shall state clearly the terms of the agreement.
   2. (2) All settlement agreements shall meet the conditions of Evidence Code section 1123 for being admissible in evidence in any proceeding that the department brings to enforce the settlement agreements. Settlement agreements may include provisions for a court to retain jurisdiction to enforce the agreement.
5. (e) The department may close a complaint resolved through a CRD mediation while monitoring a respondent's compliance with a settlement agreement and, if necessary, reopen the complaint to enforce the settlement agreement through mediation or other legal action.

Note: Authority cited: Section 12930(e), Government Code. Reference: Sections 1119, 1120 and 1123, Evidence Code; Sections 12930(f), 12963.7, 12964, 12965 and 12980(i), Government Code; and Civil Rights Department v. Grimmway Enterprises, Inc. (2025) 768 F.Supp.3d 1099.

History

1. New section filed 2-17-2026; operative 4-1-2026 (Register 2026, No. 8).