The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) has provisions covering service providers in addition to the employment provisions we’re more familiar with in our business. Mediators and arbitrators, like doctors and lawyers, are service providers who are responsible for making their services available to persons with disabilities. Often the parties and/or their representatives will ensure access. However, upon request or the reasonable knowledge of a need, the arbitrator or mediator (or a person serving in another neutral capacity) is responsible for ensuring access.

As a practical matter, this issue arises most often for wheelchair users, the deaf/hard-of-hearing and the blind. At a minimum, the wheelchair user must have access to parking, the mediation or hearing site and to a bathroom at the mediation/hearing location. Those legally blind must be afforded a touch (Braille) or hearing version of all information in addition to appropriate ways to find the mediation/hearing site such as being met and guided or in elevators with accommodation for the blind. The deaf/hard-of-hearing must be provided “effective communication” which may be a written version of everything that’s said (such as “realtime” reporting available through many court reporting firms), all communication in writing, “face time” for lip-readers or an appropriate sign language interpreter competent in the appropriate sign language (which is most often American Sign Language or ASL in the United States). Some commercial interpreting companies have sign language interpreters available. Other ready resources are courts or associations/organizations of or providing services to the deaf/hard-of-hearing. Assistive animals must be admitted/permitted even if other animals are not.

If there is a cost to providing access, that cost must be absorbed by the service provider. It cannot be passed to the parties! A service provider cannot refuse to provide service because there is a cost to doing so. This most often becomes an issue with sign language interpreters, who may charge higher fees than the service provider receives. The loss in those cases to the service provider is simply a cost of doing business. Although it is tempting to want a friend or family member to do the sign language interpreting, this is a choice that may only be made by the deaf or hard-of-hearing person and may not be required of them.