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ADA Mediation Articles
ADA Mediation Guidelines
New ADA Articles
Negotiating Disability (3/09/09)
Diane J. Levin Last summer an online magazine for entrepreneurial women elevated form over substance when it advised its audience to accessorize for that big negotiation and mimic the “look” of the person on the other side of the table. I responded with a post criticizing the undue focus on physical appearance:
Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle (11/24/08)
Victoria Pynchon Because accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things. No one, however, wants to be extorted. And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it; appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.
Workplace Disability Conflict Management (10/03/06)
Judith Cohen The publication of “Workplace Disability Conflict Management Best Practices” below brings us full circle in a sense. Our focus has shifted from ADA mediation as a specialized field of practice to its current integration as “ADA conflict management practices” into standard operating procedure at many organizations.
Questions and Answers for Mediation Providers: Mediation and the Americans with Disabilities Act (ADA) (3/04/06)
U.S. EEOC, National Council on Disability & U.S. Department of Justice More than ever, employers and employees are turning to mediation to resolve equal employment opportunity (EEO) disputes. While the proliferation of public and private sector programs has been a boon for employers and employees alike, many mediators have sought guidance on how to ensure that the mediation process is accessible
to participants with disabilities. Mediators also have raised questions about special considerations that may arise when mediating employment cases alleging discrimination under the Americans with Disabilities Act (ADA) or the Rehabilitation Act of
1973 (Rehabilitation Act).
Fulfilling Your Obligations on Mediation Capacity (7/08/03)
Judith Cohen Mediators need to be concerned when parties face obstacles to self-determination, a core value in mediation. When a party appears to have difficulty comprehending the mediation process, or seems unable to participate actively, the mediator needs to step back and explore those obstacles with the party. As mediation has moved into the legal arena, where parties are normally represented by counsel, the mediator may be less concerned about the party’s self-determination and informed decision-making.
It is Not a Disability Issue (7/08/03)
Kathleen Blank The issue of party capacity to mediate comes up with some frequency in the context of disputes involving one or more parties with a disability. Although capacity is an issue that applies to parties who are not people with disabilities, parties with disabilities more often may be judged unfairly as lacking in capacity.
Addressing Capacity: What Is the Role of the Mediator? (7/08/03)
Erica Wood Since we want people to mediate their disputes, mediators should begin by assuming capacity and should be loathe to exclude a party based on lack of capacity – should set the bar low. Yet mediators also must ensure that if a conflict is mediated a party in fact can understand the process and abide by the outcome.
Maximizing Effective Participation (7/08/03)
Patricia Porter This article examines the broader issues of party capacity or the ability for participants to be effective in their own mediation process. And, in order for the mediation process to have some evidence of success, great value should be placed on the pre-session planning process. In doing so, conveners can explore with disputants and guide them on how they might be the most effective participant.
Lessons from the Bioethics Field (7/08/03)
Ellen Waldman Ellen Waldman wrestles with the difficult question of mediator responsibility when a surrogate is charged with representing a disputant’s interests, but appears to be pursuing a different agenda.
Convening for Enhanced Self-Determination and Access to the Process (7/07/03)
Judith Cohen If confidentially is the heart of mediation, self-determination is its soul. The success of any mediation depends on the parties’ self-determination – that is, their ability to make voluntary, uncoerced, informed decisions. From that perspective, it is disturbing that mediators so frequently find ourselves engaged with parties who seem unprepared to mediate effectively.
Remarks From The ADA Editors (3/25/03)
Judith Cohen, Patricia Porter A multitude of conflict situations from interpersonal disputes to work performance issues, EEO complaints and grievances abound in the workplace. Misperceptions, lack of knowledge, miscommunication, and attitudes surrounding employees with disabilities are also potential sources of workplace conflict and may compound the other typical conflict areas.
ADA Mediation Guidelines: An Ongoing Endeavor (3/17/03)
Judith Cohen The three-year process of developing the ADA Mediation Guidelines, housed at the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, saw a tremendous collaboration with mediators, stakeholders and advocates. As the Work Group intended, the collaborative process that created the Guidelines has continued in the intervening years. This article addresses some of the resulting developments, the most significant of which have been in the areas of accommodation and mediation capacity, and the author's observations and reflections.
Alternatives to ADA Mediation: An Organizational Ombuds Perspective (3/15/03)
Marsha L. Wagner In my own experience as an organizational ombudsperson – an impartial, independent, confidential, off-the-record resource for conflict resolution -- I have often noticed the frequency with which illness, injury or disability is a factor in workplace disputes. Though there can be no dispute about the value of formal mediation of ADA workplace conflicts, in some situations there are other forms of conciliation or informal resolution that may be more appropriate.
Considerations for Mediating with People Who Are Culturally Deaf (1/06/03)
Annette Leonard, Deb Duren, & John Reiman Historically, mediation has not been an effective venue for
dispute resolution for Deaf people because of linguistic
inaccessibility and cultural non-recognition. Like other
linguistic minority groups who experience and resolve conflict
in a manner consistent with their social and communicative
norms Deaf people have some unique perspectives. The following
article illuminates some of these perspectives and explains
how mediators can address these differences when working with
Deaf people, in order to make mediation a more linguistically
and culturally respectful and responsive endeavor.
(12/18/02)
December 2002
The National Council on Disability recently released Broad or Narrow Construction of the ADA, the fourth addition to the ongoing policy brief series analyzing and responding to certain problematic aspects of the Americans with Disabilities Act decisions of the Supreme Court. The publication examines the language and legislative history of the ADA, and the legal principles in place at the time it was enacted, to determine what information can be found there regarding how narrowly or broadly Congress intended the definition of disability in the ADA to be construed, and to ascertain whether the Supreme Court's narrow construction of the definition is consistent or at odds with the statutory language, legislative history, and previously recognized legal principles.
In future papers in this series, NCD will examine various specific substantive aspects of the Court's rulings that have weakened or restricted the impact of the ADA. Another major area to be addressed concerns constitutional limits on the power of Congress to enact disability rights laws such as the ADA and other civil rights legislation.
NCD plans to develop proposals for addressing issues that appear appropriate for legislative correction, and present those proposals, along with pertinent supportive material from previous papers in a final, comprehensive report.
Broad or Narrow Construction of the ADA is available on line at www.ncd.gov/newsroom/publications/broadnarrowconstruction.html .
ADA Mediation-Important Challenges Remain (10/13/02)
Judith Cohen While many mediation providers have incorporated the ADA Mediation Guidelines into their practice, there remain gaps in practice areas. This editorial addresses two major areas that need work. 1) To a large extent, codes of conduct still do not reflect current disability rights and obligations in the mediation context. 2) Organizational providers, by and large, have not implemented effective procedures for accommodating mediation participants who have disabilities.
(5/01/02)
May 2002
The Supreme Court ruled Monday that the landmark Americans with Disabilities Act does not override company seniority systems and that disable workers are not necessarily entitled to reasonable accommodations for positions intended for more senior workers, according to published reports.
The ADA makes it illegal to discriminate against the disabled and requires employers to offer reasonable accommodations.
There was some recourse in the decision for disable workers, however, when the Justices said disabled workers can show "special circumstances" that make exceptions reasonable.
Attorneys for Robert Barnett argued that the civil rights law that allowed disabled golfer Casey Martin to ride in a golf cart on the PGA Tour is the same principle that should have been used to allow Barnett, because of his back injury, his first choice of jobs at US Airways over his more senior co-workers.
The Supreme Court threw out a lower court's finding and sent the case back for further review on a 5-4 decision.
US Airways had appealed the lower court's finding, asking whether it was legal for the ADA to trump its own seniority system. In agreeing with US Airways, Justice Stephen Breyer wrote that the ADA does not normally require that assignment and that it was up to individual employees to show why their case would grant an exception.
Barnett sought a transfer after injuring his back loading luggage at San Francisco International Airport in 1990. He was moved into the mail room, but employees with more seniority later asked for the same position and under seniority rules would be able to bump Barnett into a less desirable job, according to published reports.
Barnett sued in 1994 under the ADA and won in lower courts.
Source: FPMI Communications
The ADA Mediation Guidelines: A Community Collaboration Moves the Field Forward (1/21/02)
Judith Cohen The ADA Mediation Guidelines: A Community Collaboration Moves the Field Forward describes the various issues such as accessible process and informed consent faced by a group of twelve mediators and how they resolved these issues. This group, known as the ADA Mediation Guidelines Work Group, evolved from informal discussions regarding the lack of standards in ADA mediation and the need to address the quality of the process. The article closes with a view at the impact of the Guidelines on the field and future issues to consider.
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Featured Articles
Considerations for Mediating with People Who Are Culturally Deaf
Annette Leonard, Deb Duren, & John Reiman Historically, mediation has not been an effective venue for
dispute resolution for Deaf people because of linguistic
inaccessibility and cultural non-recognition. Like other
linguistic minority groups who experience and resolve conflict
in a manner consistent with their social and communicative
norms Deaf people have some unique perspectives. The following
article illuminates some of these perspectives and explains
how mediators can address these differences when working with
Deaf people, in order to make mediation a more linguistically
and culturally respectful and responsive endeavor.
Disabilities And Mediation Readiness In Court-Referred Cases:Developing Screening Criteria And Service Networks
Patrick G. Coy &Tim Hedeen Mediation is an ideal alternative to court for many matters. Referrals involving disputants with
certain emotional or mental disabilities may or may not be appropriate for community mediation as it is
currently being practiced. In many cases, community mediation must become more flexible and
accessible, offering coaching in advance, allowing advocate participation, using mediators skilled in
disability issues, and adapting the process. In other cases, centers must assess the "mediation readiness"
of disputants. In all cases, community mediation needs to become more deeply nested in human services
referral networks. Screening criteria through which mediation programs might assess disputant readiness
is suggested.
Resolution Of Reasonable Accomodation Disputes
Sara Adler One approach which will be useful in meeting the parties' obligation to engage in a meaningful interactive process in some sensitive reasonable accommodation situations is to employ a neutral to facilitate the process. Although similar to the rather more common variety of mediations in employment disputes, facilitation entails some differences of format.
Unique Issues In Mediating ADA Disputes
Judith Cohen Although cases arising under the Americans with Disabilities Act (ADA) sometimes present straightforward generic mediation issues, they frequently raise unique and multi-layered issues for the mediator. It is important for ADA mediators to be trained in disability law, and in disability awareness including bias issues, disability access, and how to set up and run an accessible mediation session.
Tenets of Effective ADA Mediation
Institute for ADA Mediation The tenets were developed as
the policy statement of the Institute for ADA Mediation, Louisville,
Kentucky.Its core principles focus
on resolving workplace disputes under ADA Title I, but apply to other types of ADA mediation, as
well as to mediation of disputes arising under other disability-related civil
rights laws.
Top 10 Reasons Why Psychiatric Disability Discrimination Claims Are So Hard To Mediate
Jeff Kichaven Plaintiffs and defendants alike benefit from the clear choices generated in the mediation of psychiatric disability claims. Mediation affords the unique opportunity to examine, in a cool-headed environment, how the situation must look to each side and how it might look to an impartial observer such as a judge or jury. The empowered decision-making that flows from the mediation process may provide the best opportunity for closure that the legal system can provide.
Why, then, are these cases so hard to mediate?
Guidelines For Mediation Of ADA Claims
Bruce E. Meyerson Violations of the Americans with Disabilities Act (ADA) continue to be a growing source of potential disputes between employees and employers. To assist in the mediation of ADA cases, a working group of practicing mediators, attorneys, program administrators and trainers has created ADA Mediation Guidelines designed to address "issues that are unique to resolving disability-related disputes." This article comments on certain responsibilities that the guidelines place on the mediator.
Making Mediation Sessions Accessible To People With Disabilities
Judith Cohen People with disabilities are just like everyone else, except for their disability. They are just as likely as anyone to find themselves caught up in a commercial, labor, family or other dispute. All mediators - regardless of their area of specialization - need to know how to set up and run an accessible mediation session.
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