Mediation and Conciliation in New York Employment Cases: EEOC, Division of Human Rights and NYC Commission

Mediation is a meeting in which a neutral person helps the two sides of a dispute try to reach their own agreement. The EEOC describes it as an informal and confidential process in which the mediator does not decide who is right or wrong or issue a decision.⁠^[6] Each of the three agencies that handle New York workplace discrimination complaints has its own version: mediation at the EEOC, conciliation at the New York State Division of Human Rights, and mediation or conciliation at the NYC Commission on Human Rights.⁠^[1][2][7]

This guide sets the three side by side, then covers what a mediated settlement may contain under New York State and federal law. It does not describe mediation programs run by the courts, because their procedures come from each court's own rules.

How do the three agencies compare?

	EEOC (federal)	Division of Human Rights (New York State)	NYC Commission on Human Rights (New York City)
What it is called	Mediation; later, conciliation after a reasonable-cause finding⁠[1][8]	Conference, conciliation and persuasion⁠[2]	Mediation or conciliation⁠[7]
When it can happen	Shortly after a charge is filed, the EEOC may invite both sides⁠[1]	At any time after the complaint is filed⁠[2]	At any time after a complaint is filed⁠[7]
Is it voluntary?	Yes; either party can decline⁠[1]	The Division says both sides need to agree to the terms of a settlement⁠[9]	Referral requires the agreement of all parties and is in the Bureau's discretion⁠[3]
Confidentiality	Described by the EEOC as confidential⁠[6]	The Division may not disclose what happened in conciliation⁠[2]	Members and staff may not publicly disclose what happened; a conciliation agreement is public unless an exception is met⁠[7]
Form of the result	A written, signed agreement enforceable like any other contract⁠[1]	A conciliation agreement embodied in a Division order⁠[2]	A conciliation agreement embodied in a Commission order⁠[7]

How does EEOC mediation work?

Under the federal process, shortly after a charge is filed the EEOC may contact the employee and the employer to ask whether they are interested in mediation.⁠^[1] The decision is voluntary on both sides; if either turns it down, the charge is forwarded to an investigator.⁠^[1]

1. Session. If both agree, a trained mediator conducts the mediation. The EEOC says a session usually lasts 3 to 4 hours and that neither party is charged for attending.⁠^[1]
2. Who attends. The EEOC says all parties to the charge should attend, and that the employer's representative should know the facts and have authority to settle. A party does not have to bring an attorney, but either may choose to.⁠^[6]
3. Outcome. A written, signed agreement is enforceable in court like any other contract. If there is no agreement, the charge is investigated like any other charge.⁠^[1]

The EEOC gives two average figures for its own caseload: less than 3 months to resolve a charge through mediation, and approximately 10 months to investigate a charge.⁠^[1][10]

Conciliation after a reasonable-cause finding

Conciliation is a separate, later step in the federal process. If the EEOC finds reasonable cause to believe a charge is true, Title VII directs it to try to eliminate the practice by informal methods of conference, conciliation and persuasion.⁠^[8] Under the same federal statute, nothing said or done in those efforts may be made public by the EEOC or used as evidence in a later proceeding without the written consent of the persons concerned.⁠^[11] If conciliation fails and the EEOC decides not to sue, it issues a notice of right to sue.⁠^[8] The guide to the EEOC right-to-sue notice explains what follows, and the guide on how to file an EEOC charge in New York covers the earlier steps.

How does conciliation work at the State Division of Human Rights?

Under the New York State Human Rights Law (NYSHRL), the Division may, at any time after a complaint is filed, try to eliminate the practice by conference, conciliation and persuasion.⁠^[2] The Division tells the public that a complaint can be settled at any point after it is filed, but that both sides need to agree to the terms before the Division can approve a settlement.⁠^[9]

• Under the NYSHRL, each conciliation agreement has to include provisions requiring the respondent to refrain from unlawful discriminatory practices in the future.⁠^[2]
• Under the NYSHRL, the Division may not disclose what happened in the course of its conciliation efforts.⁠^[2]
• Under the NYSHRL, it is an unlawful discriminatory practice for a party to a conciliation agreement to violate its terms.⁠^[12]

The rest of the State process, including the probable-cause determination and the public hearing, is described in the guide to the Division of Human Rights investigation and hearing.

How does mediation work at the NYC Commission on Human Rights?

Under the New York City Human Rights Law (NYCHRL), which the City Commission enforces, the Commission may try to resolve a complaint by mediation or conciliation at any time after it is filed.⁠^[7] Inside the Commission, the Law Enforcement Bureau investigates and prosecutes, while the Office of Mediation and Conflict Resolution provides mediation and operates independently of the other offices.⁠^[13]

Under the Commission's rules, the Law Enforcement Bureau may suggest mediation, or a complainant, respondent or necessary party may request it.⁠^[3] If the complainant, the respondent and all other necessary parties agree, the Bureau may, in its discretion, refer the case to the Office of Mediation and Conflict Resolution.⁠^[3]

On confidentiality, the City law draws a line between the talks and the result. Commission members and staff may not publicly disclose what happened in mediation and conciliation.⁠^[7] A conciliation agreement, however, is embodied in a Commission order, and under the NYCHRL every conciliation agreement is made public unless the complainant and respondent agree otherwise and the Commission determines that disclosure is not required.⁠^[7] The guide to the NYC Commission on Human Rights complaint process covers the other stages.

Does mediation stop the clock on my deadlines?

The EEOC says time limits for filing a charge generally will not be extended while a person tries to resolve a dispute through another forum such as an internal grievance procedure, a union grievance, arbitration or mediation before filing a charge.⁠^[4] The filing periods for each law are in the guide to New York employment claim deadlines.

Choosing an agency also has consequences of its own. Under the NYSHRL and the NYCHRL, a person who has filed a complaint with the Division or the City Commission generally cannot then sue in court on the same State or City claim; each statute lists its own exceptions for certain agency dismissals.⁠^[14][15][16] See election of remedies in New York and the comparison of the EEOC, the Division, the City Commission and court.

What can a mediated settlement contain?

A settlement reached in mediation is still subject to the rules that apply to any settlement of an employment claim.

• Confidentiality of the facts. Under New York State General Obligations Law § 5-336, a settlement of a claim involving discrimination, harassment or retaliation may not include a term preventing disclosure of the underlying facts and circumstances unless confidentiality is the complainant's preference.⁠^[5] Under § 5-336 the complainant has up to twenty-one days to consider that term and at least seven days after signing to revoke.⁠^[17][18]
• The second State statute. CPLR § 5003-b applies a plaintiff's-preference rule to "any claim or cause of action" whose factual foundation involves discrimination, resolved "by agreed judgment, stipulation, decree, agreement to settle, assurance of discontinuance or otherwise".⁠^[19] It says the plaintiff "shall have twenty-one days" to consider the term, without the words "up to", followed by at least seven days to revoke.⁠^[19] That is a difference in the wording of two statutes; how a court would read the two together is a question for a lawyer.
• Clauses that undo the release. Under § 5-336(3), which applies to agreements entered on or after November 17, 2023,⁠^[20] a release of such a claim is unenforceable if the agreement requires the complainant to pay liquidated damages or forfeit payment for violating a nondisclosure or nondisparagement clause, or to state that no discrimination, harassment or retaliation occurred.⁠^[21]
• Agency cooperation. The EEOC says that, under the federal laws it enforces, no agreement can limit a person's right to file an EEOC charge or to testify, assist or participate in an EEOC investigation.⁠^[22] Under § 5-336, a confidentiality term is void to the extent it restricts participating in an agency investigation or disclosing facts needed for unemployment insurance or other public benefits.⁠^[23]
• Age claims. Under federal law, a waiver that settles an age-discrimination charge or lawsuit has to give the individual a reasonable period of time to consider the settlement agreement.⁠^[24]

The guides on NDAs in New York settlements, how long you have to consider an agreement and the tax treatment of settlements go further.

Who decides whether to settle?

The parties do. At the EEOC, the mediator helps the parties work out their own solution and issues no decision.⁠^[6] For a person who has a lawyer, New York's court rules require attorneys to post a Statement of Client's Rights, which says a client is entitled to have the lawyer respect the client's legitimate objectives, including whether or not to settle the matter.⁠^[25]

What people commonly get wrong

• "If mediation fails, the case is over." At the EEOC, a charge that is not resolved in mediation is investigated like any other charge.⁠^[1]
• "A City Commission settlement is always private." Under the NYCHRL, a conciliation agreement is made public unless the parties agree otherwise and the Commission determines disclosure is not required.⁠^[7]
• "The employer can require silence as the price of a deal." Under New York State General Obligations Law § 5-336, a term keeping the underlying facts confidential is allowed only when confidentiality is the complainant's preference.⁠^[5]

Practical preparation

• Bring a short written timeline of events and the documents that support it.
• Think in advance about non-monetary terms that matter to you, such as a reference, a change of reporting line, training, or corrected records.