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CHAPTER 11. CONCILIATION
11-1 INTRODUCTION
Under Section 810(b)(1) of the Fair Housing Act (the Act) and Title 24 Code of Federal Regulations, Section 103.300(a) [24 C.F.R. Sec. 103.300(a)] of the implementing regulations, HUD must engage in conciliation efforts on all housing discrimination complaints filed pursuant to the Act "to the extent feasible." The period during which conciliation must be attempted commences with the filing of the complaint, and concludes with the issuance of a charge on behalf of the complainant or upon dismissal of the complaint. The implementing regulations at 24 C.F.R. Section 103.325 also set forth a limited number of circumstances that justify HUD's suspension of conciliation efforts.
11-2 CONTENTS OF THE CHAPTER
This chapter provides guidance on implementing HUD's mandate under the Act to engage in conciliation; the role of the conciliator; how conciliation works in the HUD investigation process; how and when parties may engage in the conciliation process; preparing for and conducting conciliation; determining when to suspend conciliation efforts; and detailing HUD’s role in approving and enforcing conciliation agreements. The chapter also addresses the role of the intake analyst in conveying threshold information about the conciliation process to the parties and provides guidance for HUD investigators when they are confronted with conciliation offers from parties during the course of the investigation.
Remedies provided under the Act, guidance in framing public interest provisions, an introduction to binding arbitration, as well as the required elements of a conciliation agreement are included in this chapter.
The term "conciliator" is used throughout this chapter to describe any HUD staff person engaged in the conciliation process with respect to a complaint filed under the Act.
11-3 THE HUD CONCILIATOR
Section 103.300(c) of the implementing regulations states that:
Generally, officers, employees, and agents of HUD engaged in the investigation of a complaint under this part will not participate or advise in the conciliation of the same complaint or in any factually related complaint. Where the rights of the aggrieved party and the respondent can be protected and the prohibitions with respect to the disclosure of information can be observed, the investigator may suspend fact-finding and engage in efforts to resolve the complaint by conciliation.
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A. Separating Investigation from Conciliation.
A separate conciliator need not be assigned in every case because it may be impractical to do so in some situations. In general, supervisors and managers should assign responsibility for conciliating and investigating complaints on a case-by-case basis, based on their assessments of the nature and complexity of the allegations and issues involved, and of the relative talents, capabilities and expertise of the individuals comprising the investigative staff. If an investigator realizes, during the conciliation process, that he or she cannot maintain his or her impartiality as a conciliator, then the investigator should ask the supervisor to assign someone else to conciliate the case. If a separate conciliator is assigned, the investigation should not be suspended while conciliation is taking place.
If an investigator is going to be simultaneously conciliating a case, he/she must make every effort to separate the two functions. Some suggestions as to how to separate conciliation and investigation include, but are not limited to:
- Concluding any investigation (i.e., interview, etc.) that is taking place prior to engaging in conciliation;
- Taking a break prior to beginning conciliation
- Initiating a separate telephone call in which only conciliation is discussed;
- Verbally announcing to the parties the transition to conciliation and fully explaining the difference in roles and functions of the investigator and conciliator (i.e. that anything said or done during conciliation cannot be used in the investigation); and
- Taking steps to avoid commingling notes related to investigation and conciliation.
In order to facilitate the confidentiality of the conciliation process, a detailed conciliation record must be established and maintained. In order to separate conciliation and investigation, the conciliation materials should be contained under a separate tab entitled “Conciliation” in the Deliberative section of the case file. (See also Chapter 10, Preparation of the Case File). Only materials related to conciliation should be kept under the “Conciliation” tab, which will ensure that conciliation and investigation materials are maintained separately and will prevent conciliation materials from being commingled with other proprietary information.
B. Introducing Conciliation During an Investigative Interview.
Under certain circumstances, it may be appropriate for a HUD investigator to engage in conciliation negotiations during the course of an on-site investigation. For example:
- A party makes conciliation overtures during the course of an on-site investigation and considerations of time and distance make it impracticable to delay commencement of negotiations until the completion of the on-site; and
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11-5 USE OF INVESTIGATIVE INFORMATION DURING CONCILIATION
If a conciliator believes that it would be appropriate to review portions of the investigative record with the parties during a conciliation conference, he/she should generally arrange to caucus separately with each party for this purpose. Be wary of providing wholesale access to investigative evidence to complainants or respondents because either may occasionally negotiate in bad faith only to gain inappropriate access to the investigative record.
If a conciliator decides to share investigative information with a party during the course of an on-site conciliation interview, he/she should use all reasonable precautions to limit the scope of the disclosure to evidence that is relevant to the dispute at issue between the parties at conciliation (e.g., monetary damages for individual relief).
The conciliator should keep on hand only those documents that he/she has personally screened as appropriate to share with the parties. It is recommended that a conciliator verbally share information with the parties and consult with management and Regional Counsel’s office before releasing any documents to the parties.
A. Maintaining Impartiality in Disclosure of Evidence
When reviewing investigative evidence with a party, the conciliator should never suggest that such information would support a particular finding in the case at issue. It is more appropriate to inform each party that the evidence is being provided solely in order to assist them in making realistic, practical assessments of their respective positions.
B. Assessing the Potential Impact of Disclosure on the Outcome of Negotiations
Before introducing investigative evidence into the negotiations, the conciliator should consider whether this approach is more likely to help the parties achieve a realistic view of their circumstances, or to create new obstacles to settlement by encouraging hostility.
C. Assessing the Potential Impact of Disclosure on Witnesses
A conciliator must carefully consider whether the use of investigative evidence increases the likelihood that named and anonymous witnesses will refuse to cooperate with HUD investigations, or that a party will expose such witnesses to unreasonable risks of reprisals. For example, the evidence may include damaging testimony provided by other tenants who fear retaliation by the respondent landlord. Given these considerations, it is recommended that the conciliator not reveal a witness’s name or other identifying information.
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D. The Use of Testing Information During the Conciliation Process
Information concerning results of all tests, whether positive, negative or inconclusive, may be shared with the respondent during conciliation. It is recommended that the conciliator orally share information about the tests with the respondent and avoid, wherever possible, releasing anything in writing concerning tests that were conducted. The conciliator should consult with management and Regional Counsel’s office prior to releasing any testing documents, including any narrative summary of the tests.
11-6 DOCUMENTING THE CONCILIATION RECORD
A. Documenting HUD's Compliance with the Act
In general, a completed case file must demonstrate that HUD engaged in meaningful efforts to resolve the complaint through conciliation.
- Evidence of conciliation efforts can best be demonstrated through the preparation of a detailed, chronologically organized conciliation record. The record should stand on its own as convincing evidence of HUD's bona fide efforts to conciliate the complaint in accordance with the Act and the regulations.
- Suggested format. The conciliation record should include a chronological progress log that briefly summarizes the contents of each conciliation-related contact with the parties and their representatives. The conciliator should complete and attach a Document Control Cover Sheet for the materials in the conciliation record. The documentation on conciliation may include: written conciliation interview reports with the parties, summaries of conciliation-related discussions with parties and their representatives, memoranda of telephone conciliation- related contacts prepared by the HUD conciliator, signed and dated notes or lists of relief proposals submitted by the complainant and formal letters drafted by parties or their representatives.
- Document conciliation efforts no matter what type of negotiation. The conciliator should maintain detailed documentation of each conciliation-related contact, whether written or verbal. Where conciliation negotiations are conducted face-to- face with any party, the conciliator should memorialize the contact in the form of a memorandum describing the date and time of the meeting, the parties present, the offers conveyed, and the parties’ responses to those offers (i.e., acceptances, rejections, and/or counter-proposals). When negotiations must be conducted at “arms-length,” it becomes the HUD conciliator’s responsibility to convey offers and counteroffers among the parties and to document the parties’ responses for the conciliation record.
- Reviewing proposals for individual relief prior to transmittal. When a conciliator receives a proposal for individual relief from a complainant, he/she should, where
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- Other documents created by the HUD conciliator. Conciliation-related interview reports should be prepared in the same detailed narrative format used for party and witness investigative interviews. Where appropriate, the narrative should describe the manner in which the conciliator informed the party of the rules and privileges specifically applicable to the conciliation process. Where the HUD conciliator has reduced a party's verbal offer, rejection or counter-offer to written form in order to convey it to the other parties, the conciliator should include a dated and signed copy in the conciliation record.
11-7 CONCILIATION RELATED ISSUES AT INTAKE
During the intake stage of complaint processing, the parties (if both complainant and respondent are contacted at intake) should be informed of their right to pursue conciliation. The subject of conciliation should be raised with the complainant and respondent during the initial intake interview and discussed in the standard notification letters to the parties. In order to introduce the parties to the conciliation process and generally describe the nature of the relief available through voluntary resolution, the intake analyst should be thoroughly familiar with HUD's regulations for "Conciliation Procedures" at 24 C.F.R., Subpart E, Sections 103.300 through 103.335.
As the first point of contact in the administrative complaint process, the intake analyst is in a unique position to start fulfilling the Department's responsibility for fully informing the parties about their rights and responsibilities in conciliation.
Generally, the only conciliation functions that are performed at intake are to advise the complainant (and respondent if applicable) of the HUD process, remind the complainant to retain receipts and other records of damages, and send out an invitation to conciliate letter and Conciliation Fact Sheet with the Notification Letter. A Conciliation Fact Sheet is included in the Appendix to this chapter.
11-8 DETERMINING WHEN TO CONCILIATE
The parties should be made aware that conciliation could occur at any time during the investigation of an open complaint. In order to build the administrative record of conciliation, it is recommended that the last line of all correspondence sent to the parties state, “If you are interested in conciliating this case, please contact [name of conciliator].”
Any party to a complaint may initiate conciliation by making an offer to, or requesting an offer from, an opposing party. The HUD conciliator should promptly convey such offers and counter-offers to the opposing party. If the parties indicate a mutual desire to reach a settlement, the conciliator should promptly initiate negotiations.
A party may react to the receipt of a notification letter by proposing a settlement. The conciliator must remember that a party's unsolicited settlement proposals and offers must
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receive the same protection and confidential treatment as proposals and offers made in response to HUD initiatives. Aside from these circumstances, during the period beginning with the filing of the complaint and ending with the filing of a charge or the dismissal of the complaint, HUD has an affirmative obligation to initiate bona fide conciliation attempts.
11-9 IDENTIFYING APPROPRIATE PARTIES TO CONCILIATION
In addition to the assigned conciliator, the following persons and/or entities are entitled to participate in the conciliation process:
A. The Parties
- Complainants. Where more than one complainant has signed a HUD complaint, each individual complainant must be offered the opportunity to become involved in the conciliation process. However, each individual complainant is free to accept or reject conciliation with the respondent. If the parties are unable to negotiate a conciliation agreement that contains individual relief provisions acceptable to all the named complainants, HUD must continue to process the complaint with respect to those complainants who were not included in the conciliation agreement.
- Respondents. Similarly, where more than one respondent is identified on a HUD complaint, each individual respondent must be offered the opportunity to become involved in the conciliation process. Each individual respondent is free to accept or reject conciliation with the complainant. If the parties are unable to negotiate a conciliation agreement that contains individual relief provisions acceptable to all the named respondents, HUD must continue to process the complaint with respect to those respondents who were not included in the conciliation agreement. However, it is not unusual for one respondent to take the lead in conciliating and negotiate a settlement on behalf of all the named respondents.
Conciliation should be offered to all parties, whether individual or institutional, who could be held liable for the alleged discriminatory housing practice if the complainant's allegations are true. If the complaint is amended to add an additional respondent or complainant, he/she must be offered an opportunity to conciliate before a cause determination or charge is issued.
- Organizational Representatives. It is critical to identify organizational representatives who have the authority to negotiate and execute conciliation agreements on behalf of the respondent(s). It is important for a conciliator to identify who actually owns, manages, or otherwise controls access to the monetary relief and/or housing benefit sought by the complainant. Conciliation overtures made to an employee or official who lacks authority to negotiate on behalf of the respondent who actually owns, manages, or otherwise controls
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The conciliator should identify key source materials related to the Act, which may help all parties to the conciliation understand the issues raised by the complaint. Source materials can also suggest possible resolution through appropriate relief provisions. Examples of source materials include the Act, implementing regulations, guidance documents and memoranda, court decisions, conciliation agreements in similar cases and any consent decrees negotiated by HUD’s Office of General Counsel or the Department of Justice following the issuance of a charge.
B. Assessing The Parties' Positions and Objectives
The HUD conciliator should assess all available evidence relating to the parties' respective positions and resources, including information collected during intake (see Chapter 4, Complaint Intake).
As the investigation proceeds, the conciliator should routinely review any answer(s) filed by a respondent, together with any responses to data requests and notes from investigative interviews with the respondent. There is no prohibition against the use of information from the investigative record in the conciliation process. However, the Act does prohibit the use of information learned during the conciliation process in the investigation or in any subsequent proceeding under the Act without the written consent of the parties.
A respondent's answer(s) may reveal his or her:
- Predisposition to settle,
- Degree of personal involvement in the activity complained of,
- History of association with the complainant,
- Level of authority within the respondent organization,
- Standard business practices,
- History of fair housing compliance, and
- Participation in HUD-sponsored programs.
After becoming familiar with the positions and resources of each of the parties, the conciliator should attempt to determine whether any of the parties’ objectives are compatible.
C. Setting the Stage
- Physical setting, location, timing and content of the conciliator's contact. The physical setting, location, timing and content of the conciliator's contact with each party and/or party representative may be critical to the success of the effort, and may affect the attitude with which the parties approach the conciliation process. The conciliator should invest as much care in his or her approach to conciliation by telephone as he/she would in circumstances where one or both parties are physically present.
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The conciliator should make every effort to ensure that the timing of the contact is mutually convenient and that the site selected and overall environment is acceptable to the parties. Assess each party's circumstances when determining whether it is best to conduct conciliation via telephone, or whether a series of "one-on-one" meetings at the HUD Office, the party's residence or work place, or a "neutral" location such as a library, community center, etc., would be more effective. When telephoning a party to discuss conciliation, first inquire whether he/she feels comfortable holding the discussion in his/her current physical setting, whether he/she has sufficient privacy, and whether the party can remain at the location for a reasonably sufficient time to conclude the discussion.
- Accommodating Disabilities. Arrangements should be made so that individuals with disabilities (i.e., complainants, respondents, their representatives or anyone associated with a complainant or respondent) will be accommodated in conciliation. Ascertain whether any individuals involved in conciliation have any special needs that would require a reasonable accommodation of a disability (e.g., visual, audio, verbal or mobility impairments, mental or developmental disability). If so, attempt to structure the format of conciliation in a manner that will best enable the individuals with disabilities to fully participate. Although accommodation must be handled on a case-by-case basis, attempt to utilize the Department’s own resources (e.g., computers, TDD machines, interpreters, large- print publications) to convey and assist the individuals with disabilities with communications.
D. Establishing Protocol
A conciliator is responsible for setting the stage for conciliation and establishing the protocol for conciliation discussions.
- Set protocol. Inform the parties of the ground rules that they must observe during the negotiations and the overall conciliation process. The conciliator should make it clear that he/she will support the mechanics of the conciliation process by conveying offers and counter-offers between the parties, by providing a sample conciliation agreement and by drafting and finalizing the conciliation agreement.
- Define the permissible scope of conciliation. Provide the parties with information regarding their rights and obligations under the Act. Educate them about the Act's requirements as related to the specific allegations of the complaint.
- Avoid parties “arguing the case.” The conciliator should stress to the parties that conciliation is not an acceptable forum to argue the merits of the case.
- Avoid arguments among the parties. The conciliator should explain that personal arguments among the parties will not be permitted during conciliation. Explain
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The conciliator should caution the parties about communicating during the conciliation process without the conciliator’s involvement. When the parties deal directly with each other during the conciliation process, without the participation or knowledge of the HUD conciliator, the process is susceptible to abuse. The result may be that offers and counter- offers are not properly documented, and opportunities may be created for the parties to coerce, intimidate, or threaten each other. Most importantly, this method encourages the parties to make private settlements, without HUD oversight or enforcement of individual relief provisions for the complainant, and without appropriate relief in the public interest. The conciliator should advise the respondent that HUD may, if the public interest is not addressed in a private settlement, initiate a Secretary-initiated complaint and continue to investigate the allegations.
11-11 INFORMING PARTIES OF THEIR RIGHTS DURING CONCILIATION
Any party involved in the conciliation process should be informed of his or her rights, including the following:
- Confidentiality. Describe to the parties the Act's provisions regarding disclosure and nondisclosure of information obtained during conciliation. Where appropriate, explain that financial and medical information will be closely guarded, and that its disclosure to third parties is protected under the Right to Financial Privacy Act of 1978 and other privacy laws.
- Representation. Explain to the parties that they have the right to have an attorney or other person represent their interests during any conciliation-related negotiations and that the conciliator does not represent either party.
- Binding Arbitration. Explain to the parties that they have the option to resolve certain questions involving the individual relief provisions in a conciliation agreement through binding arbitration. The term "binding arbitration" refers to a process by which two parties agree to allow an impartial third party to render a decision on a disputed issue and to abide by the third party's decision. The specific types of relief that can be submitted to arbitration under a HUD-approved conciliation agreement are described later.
11-12 CONCILIATION TECHNIQUES
It is the conciliator who selects and communicates the approach to be used during conciliation. Sometimes the technique may vary based on the parties and/or issues in a particular case.
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A. Explaining the Nature and Purpose of Conciliation
The conciliator should explain to each party that the goal of conciliation is to reach a resolution of the complaint that is acceptable to the complainant, the respondent and HUD. The conciliator should describe, in general terms, the procedural effect of a failure to resolve a Title VIII complaint through conciliation.
B. The Importance of Maintaining Neutrality
A conciliator must never depart, or give the impression of departing, from the role of a neutral, dispassionate intermediary seeking to facilitate a mutually agreeable settlement. The conciliator should avoid behaving in a manner that suggests to the parties that he/she has an emotional or professional stake in any outcome of the proceedings. Conciliators should discourage efforts by any party to involve them in any personal disputes between parties, or to encourage them to express a bias for or against any party's position in the case. A conciliator must never threaten, or appear to threaten, a party with adverse consequences for failing to conciliate a complaint. A conciliator should refrain from characterizing any offer as fair or unfair, but should address proposed provisions that, on their face, violate the Act or HUD policy.
C. Explaining Provisions for Individual Relief
Conciliators should bear in mind that any monetary settlement between the parties is simply a sum that the respondent agrees to pay to resolve the complaint. The settlement amount may consist of a lump sum agreed upon by the parties. There is no prohibition against earmarking specific sums as "actual damages," "damages for humiliation and embarrassment," etc., as a court or ALJ might require. However, do not permit the issue of itemized damages to create an impasse in the negotiations.
The parties must understand that individual relief, which often involves monetary damages to complainants, is central to the conciliation process. It is important to provide both complainant and respondent with a realistic context within which to assess the proposed provisions of the conciliation agreement. This can be accomplished by describing the remedies for housing discrimination provided under the Act, as well as the types of relief that have been awarded by Administrative Law Judges or Federal judges to complainants who have prevailed on the merits of complaints based upon similar allegations.
Individual relief offered during the conciliation process for a complainant need not be limited to the type of relief that can be ordered after adjudication on the merits of the complaint. The conciliation agreement may include any terms that are not offensive to the public interest or fair housing and that are acceptable to all parties and to HUD.
D. Explaining the Purpose of Public Interest Provisions
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11-13 EARLY- AND LATE- STAGE CONCILIATION
As previously noted, conciliation can occur at any time that a complaint is open with HUD. However, conciliation seems to be more successful at one of two different points in the processing of a complaint. These are often referred to as “early-stage” and “late- stage” conciliation. As the names indicate, “early-stage” conciliation occurs right after the complaint has been filed and before much, if any, investigation has been completed. "Late-stage" conciliation occurs at that point in complaint processing when investigative fact-finding is concluded, and the HUD investigator believes that he/she has gathered sufficient evidence on which to base a recommendation for a determination of reasonable cause or no reasonable cause.
A. Early-Stage Conciliation
In general, HUD-initiated "early-stage" conciliation efforts may commence as soon as jurisdiction has been established and the parties have been served with notice of the complaint. By definition, the execution of a valid HUD conciliation agreement rests upon the filing of a valid, signed and affirmed complaint. Although conciliation efforts on a complaint may sometimes commence even before the aggrieved person has signed the HUD complaint, a conciliation agreement will not be enforceable unless the complaint has been signed or affirmed.
The conciliator should not attempt to negotiate with a respondent prior to the issuance of notification letters and confirmation that the respondent has been served with notice of the complaint. Exceptions include situations in which it can be demonstrated that a respondent has constructive notice of the filing of the complaint, and/or where appropriate, to prevent irreparable injury to the complainant. If the respondent has not yet received notice of the complaint, the conciliator can provide a copy of the notification letter, complaint and Conciliation Fact Sheet at the time of initial contact. If the file record does not include an answer to the complaint, ascertain if the respondent has filed an answer.
In the event that a conciliation agreement is negotiated before the aggrieved person has signed the HUD complaint, the aggrieved person should sign the complaint at the same time that he/she executes the Agreement.
- Assessing the appropriateness of “early-stage” conciliation. A conciliator should be alert to time constraint situations in which a complainant is about to suffer irreparable harm and should make a concerted effort to facilitate conciliation as soon as possible. - The complaint may involve the attempted purchase of a single-family house that the complainants need within 60 days because they have sold and agreed to vacate their current residence by that time.
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- A complainant may be seeking to move into a dwelling prior to the commencement of the next school year and may indicate that he/she is unwilling to change addresses after the school year begins.
In each of the above cases, the complainant's needs may be satisfied in the immediate future and will become more difficult to satisfy with time because of the unique nature and brief availability of the most desirable form of relief.
- When "early-stage" HUD-initiated conciliation may be inappropriate. After making initial contacts with the parties and reviewing the available factual record, the HUD conciliator may, in some situations, find it necessary to decide whether the circumstances of the case make it inappropriate (i.e. contrary to the public interest) for the Department to initiate "early-stage" conciliation efforts. Examples of circumstances that might justify the Department's decision to refrain from initiating "early-stage" overtures include, but are not limited to, the following: - Jurisdiction is questionable and the complainant seeks substantial damages; - The respondent is a large-scale housing provider with a history of making early-stage settlements of HUD complaints alleging similar discriminatory housing practices, and the Department has accordingly had little or no opportunity to investigate the manner in which the respondent does business; - The respondent has other similar complaint investigations still pending with HUD and/or certified substantially equivalent agencies, and the conciliator has had no access to potentially relevant evidence from those companion cases before commencing negotiations with the parties; and/or - HUD is investigating whether to initiate an action to request a temporary restraining order or injunctive relief.
- Public interest provisions in “early-stage” conciliation. Every HUD conciliation agreement should include provisions for relief in the public interest. However, during the early phase of fact-finding, the investigative record may not contain sufficient evidence to determine whether or not the respondent has violated the Act. Therefore, public interest provisions in early-stage conciliation agreements may be relatively general.
The conciliator may consider the following factors when drafting such provisions:
- The nature of the allegation;
- The nature of the respondent;
- The respondent's fair housing history;
- The size and scope of the respondent's housing-related operations; and
- The nature and quality of the totality of evidence then available.
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In general, "late-stage" conciliation may offer a unique opportunity to rethink previous strategies of approaching the parties. The end of fact-finding also could be the most effective time to undertake "face-to-face" negotiations between the parties, particularly if such contacts have not been attempted or were previously unsuccessful.
- Initiating "late-stage" conciliation. Particularly in cases where the facts support a reasonable cause determination, existing case law and policy generally require that the Department initiate "late-stage" good faith conciliation efforts at the close of investigation, preferably immediately after the investigator has conducted the final investigative ("rebuttal") interviews with the parties and witnesses (see Chapter 7, Planning and Conducting the Investigation). At this point in complaint processing, the investigator has had an opportunity to confront the parties and witnesses with any evidence that appears to support or contradict their respective positions with respect to the issues in the complaint, thereby providing each with the opportunity to rebut damaging evidence, clarify inconsistencies in the record, and, where appropriate, to rethink earlier assessments of the relative strengths and weaknesses of their positions.
The close of investigative fact-finding also marks an appropriate time for the conciliator to review both the investigative and the conciliation records with each party, thereby providing each with a final opportunity to assess the totality of the evidence in light of his or her position with respect to conciliation.
Because the entire investigative record also is available to the conciliator at the close of fact-finding, he/she can make a more accurate assessment as to whether or not the Act was violated, for purposes of drafting appropriate public interest provisions.
- Nondisclosure of Field Office recommendations. Although a conciliator may discuss aspects of the investigative record with the parties, he/she must not disclose recommendations as to the disposition of any issues raised in the complaint.
- "Late-stage" contact with the parties. If there have been no recent negotiations among the parties, it is important to reestablish the terms and ground rules of the relationship by emphasizing the nature and purpose of the conciliation process. As always, if a party is represented, then contact should be initiated through the representative. If either of the parties expresses anger or impatience at being contacted again, the conciliator should emphasize that he/she is acting in furtherance of HUD's obligation under the Act to ensure that the parties have meaningful opportunities to participate in conciliation at every key stage of the process while the case remains open.
The parties should be advised that the HUD conciliator is prohibited from commenting on the merits of the evidence. The conciliator should emphasize that he/she is willing to review aspects of the investigative record with the parties, but that ultimately, the parties (and, where applicable, their representative) must draw their own conclusions from the record.
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As in previous negotiations, the conciliator should actively discourage efforts by any party to "argue the case" with the conciliator or to turn the session into a continuation of the investigation process.
The conciliator also should inquire whether the complainant has any specific proposals to put before the respondent before the case determination is prepared. Regardless of whether the complainant has anything new to propose, the complainant should be asked whether he/she is interested in considering any new overtures that the respondent might make. If the complainant expresses general interest in further negotiations (even though no specific proposals are yet on the table), the conciliator should proceed to discuss the preferred format and schedule. If the answer is in the negative, the conciliator should advise the complainant that he/she also is obligated to offer the respondent a final opportunity to conciliate, and that, in the event that the respondent makes a final offer, the conciliator must convey it to the complainant.
- Determining the appropriate format for "late-stage" negotiations. A conciliator should determine the appropriate format for late-stage negotiations depending on the facts and circumstances of each particular case. Refer to the discussion at Preparing for Conciliation, in deciding on the appropriate format.
- Establishing a reasonable time frame for "late-stage" conciliation. In general, when setting time frames for "late-stage" conciliation, the HUD conciliator should be guided by the same considerations that shaped his or her approach to earlier efforts. In each case, the conciliator should base the length of the time frame permitted on his or her assessment of the expressed positions of the parties after the initial contact, as well as on the overall nature and complexity of the factual record, as it may affect the necessary complexity of the proposed public interest provisions in the conciliation agreement.
- HUD-Initiated "late-stage" conciliation of cases with "No Reasonable Cause" recommendations. If the evidentiary record at this stage of the investigation indicates a likelihood that the complaint will be dismissed with a "no reasonable cause" determination, additional conciliation efforts should only be undertaken where the parties initiate contact and changes in circumstances suggest the likelihood that the parties will reassess their attitudes towards settlement; where the "no-cause" recommendation is a "borderline" assessment; or where earlier conciliation efforts were not conducted and there is an indication that one of the parties is interested in seeking resolution.
- Party-Initiated "Late-Stage" Conciliation of Cases With "No Reasonable Cause" Recommendations. Conciliation initiatives by parties to complaints that appear to be "no reasonable cause" cases should be conveyed and pursued in the same manner and to the same degree as those generated in connection with a complaint that appears more likely to result in a charge. The reason for this policy is two-fold: (1) neither
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