Section 1.09 - Conciliation(1)Conciliation Required after Determining Probable Cause. Upon a determination of probable cause pursuant to 804 CMR 1.08(1)(f)1. or 3., the Investigating Commissioner shall endeavor to eliminate the unlawful practice complained of through conference, conciliation and persuasion in accordance with M.G.L. c. 151B, §5. In conciliating a complaint, the Commission shall attempt to achieve a just resolution of the complaint and to obtain assurances that the respondent shall satisfactorily remedy any violations of the rights of the aggrieved person, and take such action as shall assure the elimination of discriminatory practices, or the prevention of their occurrence in the future.(2)Party Obligations.(a) Attendance at a scheduled conciliation is mandatory, and all parties shall attend conciliation with authority to settle the matter.(b) The case in support of the complaint at conciliation shall be presented either by private counsel retained by complainant or by counsel for the Commission. A complainant may not proceed pro se at conciliation. A complainant's failure to retain counsel or cooperate with counsel for the Commission shall be grounds for dismissing the matter.(c) At least ten days prior to the conciliation, counsel for complainant or counsel for the Commission shall send a written settlement proposal to respondent.(d) At least five days prior to the conciliation, the parties shall hold preliminary settlement discussions for the purpose of making a good faith effort to resolve the complaint.(3)Continuances. Continuances shall not be granted except upon written motion filed in accordance with 804 CMR 1.13 demonstrating good cause.(4)Consequences for Failing to Attend Conciliation. Failure to attend conciliation may result in the imposition of sanctions for costs incurred by the Commission or the opposing party. A respondent's failure to attend may result in the immediate certification to public hearing pursuant to 804 CMR 1.11, and complainant's failure to attend may result in the administrative dismissal of the complaint pursuant to 804 CMR 1.08(1)(d).(5)Provisions Sought for the Public Interest. The provisions which may be sought for the vindication of the public interest, include: (a) Elimination of the discriminatory practice;(b) Prevention of future discriminatory practices;(c) Remedial affirmative activities to overcome discriminatory practices;(e) Reporting requirements;(f) Monitoring and enforcement activities;(g) Consent orders or decrees; and(h) Educational and training efforts.(6)Relief Sought for Aggrieved Persons. The relief sought for aggrieved persons in conciliation may include, but is not limited to: (a) Monetary relief in the form of compensatory damages for back pay, front pay, and emotional distress, and attorney fees and costs;(b) Equitable relief including, but not limited to, reinstatement to employment, promotion, letters of recommendation or reference, access to the dwelling at issue (or to a comparable dwelling), the provision of services or facilities, an apology and a promise to refrain from engaging in the same or similar discriminatory conduct, reasonable accommodation, or other specific relief; and(c) Injunctive relief appropriate to the elimination of discriminatory practices affecting the aggrieved person or persons.(7)Termination of Conciliation Efforts. The Commission may terminate its efforts to conciliate a complaint if the respondent fails or refuses to confer with the Commission; the complainant or the respondent fail to make a good faith effort to resolve any dispute; or the Commission finds, for any reason, that voluntary agreement is not likely to result.(8)Information Obtained during Conciliation. Nothing that is said or done in the course of conciliation can be used as evidence in a subsequent public hearing held pursuant to 804 CMR 1.12 or in civil actions under M.G.L. c. 151B, § 9.(9)Review of Compliance with Conciliation Agreements. The Commission, through its individual Commissioners, from time to time, may review compliance with the terms of any conciliation agreement. Whenever the Commission has reasonable cause to believe that a respondent has breached a conciliation agreement, the Investigating Commissioner may take appropriate action, including reopening of the matter before the Commission, and the filing of a civil action for enforcement of the terms of the conciliation agreement and seeking appropriate sanctions under M.G.L. c. 151B, § 8.(10)Conciliation Agreement. A conciliation agreement shall be an agreement between the respondent and the complainant and shall be subject to the approval of the Commission. It may include any or all remedies available under 801 CMR 1.00. Such agreement shall be in writing, shall set forth the terms of the agreement, and shall be signed by the parties. In accordance with M.G.L. c. 151B, § 5, the Commission may make public the terms of conciliation when the complaint has been so disposed of.(11)Failure to Accept Reasonable Settlement Offer. When a formal offer of settlement by a respondent is acceptable to the Commission, but not to the complainant, the Commission may dismiss the complaint and, if timely, the complainant may proceed in the appropriate court of competent jurisdiction under M.G.L. c. 151B, § 9. In making this determination, offers of settlement by a respondent shall be reviewed by the Investigating Commissioner to determine whether the public interest would be served by the continuation of the proceedings. The Investigating Commissioner may consider the following non-exhaustive criteria in making this determination: (a) Probability of success after public hearing;(b) Reasonableness of offer;(c) Reasonableness of complainant's refusal, if any;(d) The amount of the complainant's economic loss, and respondent's degree of responsibility thereof;(e) Evidence of any emotional distress suffered by the complainant, and respondent's degree of responsibility;(f) The egregiousness of the discrimination charged; and(g) Whether the time for filing a civil action, under M.G.L. c. 151B, § 9, has expired.Amended by Mass Register Issue 1409, eff. 1/24/2019.