PUblished Mediation Articles
“Preventative Mediation and the Interactive Process,” New Jersey Law Journal, (March 30, 2009)
[SUMMARY: Mediation following the start of a disability discrimination
Introduction
The Americans With Disabilities Act (“ADA”) requires employers to reasonably accommodate employees with disabilities. Under federal regulations, as enforced by the courts, reasonable accommodations are reached through an “interactive process.” This compulsory negotiation procedure begins when a disabled employee, or her union representative, notifies an employer that she needs an accommodation to perform an essential job function. Acting in good faith, they then must discuss the obstacles to job performance, and explore potential accommodations.
Oftentimes this process results in an agreement that keeps a productive employee gainfully employed. This is not always the case. Failed communication and impasse may follow from not understanding: a disability’s real effect on performance; and/or a job’s essential functions; and/or complex rules of law; and/or the other party’s underlying interests. As mediator Debra Dupree observed:
both the employee and employer often lack appropriate information about the interactive reasonable accommodation process their rights and responsibilities under the law, and the disability itself. The employer is concerned with getting the job done, the impact on bystanders, and potential lawsuits if not handled appropriately. The employee may be concerned about whether or not an accommodation will be provided and about losing his or her job.
Lawsuits may result if these issues are not addressed. Introducing preventative mediation into the interactive process has proven an excellent method to keep workers employed, and businesses productive.
Preventative Mediation
Those involved recognize when an employment relationship is spiraling out of control. Despite the best efforts of conscientious employees and prudent managers, matters may deteriorate further if the knowledge and skills to correct the situation are lacking.
As the result of court referrals under Rule 1:40, New Jersey employers and employees are increasingly using mediation to address litigated FEP claims. Mediation is well suited to resolving these conflicts. The fact remains, however, that once a lawsuit has been filed “the horse is out of the barn.” Since everyone gains from resolving disputes sooner rather than later, an apt question is “Should we call on a mediator before discontent morphs into litigation?”
The short answer is that it makes sense to retain the services of a professional mediator whenever it appears that an employment relationship may be returned to normal. Most employees and managers have their employer’s interest at heart, and a common stake in sharing a positive job environment. Often, at a truly nominal cost, workplace disputes can be resolved before they fester into lawsuits. This is particularly true of conflicts related to the interactive process.
Mediation is cooperative, and aimed toward finding win-win solutions to mutual problems. With the help of neutral mediators employees and employers seek, and then make intelligent choices among, solutions to resolve disputes to their mutual satisfaction. Mediation is confidential, voluntary, and lasts only so long as all parties desire. Settlements occur between 65% to 80% of the time depending on the complexity of the issues, volatility of the participants, and skill of the mediator. Mediator compensation, in New Jersey, tends to range from $220.00 to $450.00 per hour; averaging about $275.00. Most non-complex employment cases settle, or not, within 5 or 6 hours.
Preventative Mediation and The Interactive Process
The principal reason for mediating reasonable accommodation disputes is that the interactive process oft times falls on the shoulders of persons who lack the knowledge to understand rights, duties, and viable solutions. Individual workers and supervisors may lack a sophisticated understanding of the issues, and have preconceived views of their respective rights. Indeed, a Human Resources Vice President rarely represents employers, while employees seldom have a seasoned negotiator at their side. It makes sense to recruit a mediator if people start the process and stumble, or realize from the beginning that discussions may be difficult. The price for this assistance is nominal (i.e., estimated to range between $275 and $1,375 per dispute).
Mediation is being increasingly applied to reasonable accommodation issues. The publication, in 2000, of the ADA Mediation Guidelines (the “Guidelines”) reflects this increase. http://www.mediate.com/articles/adaltr.cfm The Guidelines address how the interactive process should function within the context of mediation.
Choosing the Mediator: As a general principle parties seek mediators who are: respectful; proactive listeners; neutral; empathetic; emotionally intelligent; analytical; and quietly persuasive. When searching for a neutral to work within the interactive process, they additionally should look for mediators with: 1) substantive legal knowledge (i.e., ADA, NJ Law Against Discrimination, applicable regulations, and court decisions); 2) substantive disability knowledge (e.g., common disabilities, their impact on functioning & accommodation options, sources of technical information and assistance); 3) specialized practice skills (e.g., running an accessible session, adapting mediation techniques to unique people with particular disabilities, disability etiquette); 4) related laws (i.e., FMLA, Workers’ Compensation, Social Security Disability, and state disability laws); 5) federal labor law if mediating in a unionized setting; and 6) special sensitivity regarding confidentiality (e.g., absent express consent, not disclosing the diagnosis or severity of a disabled person’s condition).
A Level Playing Field: Mediators have long debated long about maintaining, “level playing fields.” At one end of the spectrum, labor mediators approach collective negotiations with a “water will reach its own level” mindset. They recognize that economic, organizational, and political power greatly effect settlement terms when union and management bargain. Mediators of child custody disputes, on the other hand, always have an eye on the “best interests of the child.”
The mediation of accommodation disputes within the context of the interactive process has its own balance. Specifically, the Guidelines urge mediators to “make every effort to ascertain whether the parties have a sufficient understanding of their rights and obligations under the ADA, and the implications of any (a) agreement that they reach, or (b) decision to reject an offer of settlement.” See Guidelines, Article IV B.
Mediators address this duty in several ways. The classic approach is to allow the parties to educate each other during joint sessions, with the mediator’s questions focusing the discussion. Another mid-session approach is to encourage parties “to consult appropriate sources of information and advice.” Also, of course, memoranda of understanding can be made contingent on attorney review.
These, and other, techniques are essential if mediators are to help parties find a trail through the thicket of laws, medical concerns, productivity issues, and emotions that can block resolution.
Creativity
While parties do not want neutrals that muscle them to accept settlements, they rightly dislike mediators who are “potted plants.” They prefer professional who have the knowledge and techniques to help them generate creative ideas. Some mediators will “brainstorm” with the parties, while others may ask a series of “What if…,” or “Have you considered” questions.
By way of example, consider accommodating an employee with a 25–pound lifting restriction whose essential job duties include periodically moving 30-pound cartons. A mediator may ask: “Have you considered: A) Having co-workers move the cartons?; B) Having supervisors help out as needed?; C) Reassignment within classification to a different work station where lifting is not required?; D) Restructuring the job to reduce, or eliminate lifting while increasing productivity?; E) Changing shifts? F) Purchasing a scissor lift table?; G) Checking with the physician who issued the restriction if wearing a back support belt would safely allow him to lift 30 lbs?; or H) Reducing the weight of the cartons? Within the response to these, and other questions, often lie the seeds of a mutually acceptable accommodation.
Conclusion
Following the interactive process is the law, and makes good business sense by increasing the chances of retaining competent employees on payroll. However, it can be a daunting process for shop personnel who are charged with its implementation, and for employees who are scared of losing their jobs. Professional mediators with experience in this growing area provide valuable assistance in the more trying cases.