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1. Mediation is the form of alternative dispute resolution most consistent with the intent and spirit of the Americans with Disabilities Act.
The Federal statute explicitly encourages voluntary methods of alternative dispute resolution. Mediation permits the parties the greatest degree of control over the outcome and the process conforms to the case-by-case analysis and reasonable accommodation concepts of the ADA. A frequent source of conflict is the breakdown of the interactive process between the individual and the employer to determine a reasonable accommodation. Mediation may be an effective tool to reestablish and monitor the process, ensuring that both parties have equal voice in working out a solution.
2. The mediator must have knowledge of the Americans with Disabilities Act of 1990 and related laws.
The Americans with Disabilities Act of 1990 is comprehensive civil rights legislation that prohibits discrimination on the basis of disability. It establishes some very clear principles that must be understood when an employment conflict arises. It contains multiple provisions regarding coverage and exemptions. In the employment arena, it is also advisable that the mediator understand what entities are covered by the Rehabilitation Act of 1973, and how the ADA interfaces with other workplace laws, such as the Family & Medical Leave Act and state workers' compensation statutes.
The need for an understanding of the law is not the same as saying that the mediator must be an attorney, since the mediator is precluded from rendering legal advice when serving in this impartial capacity. However, it is important that the mediator understand the legal parameters under which the dispute arose. Furthermore, it is prudent to inform all parties that they have rights and responsibilities under the law, and to advise the parties of their right to obtain legal counsel if considered appropriate.
3. The mediator must be sensitive to the issues affecting individuals with disabilities.
To build trust as an effective neutral, it is essential that the mediator understand issues affecting individuals with disabilities. The mediator should practice, and model, appropriate etiquette and positive language for interacting with persons with disabilities. The mediator must be able to identify and remove potential barriers and ensure that the process itself is made fully accessible to the parties. It is not the role of the mediator to devise solutions, but s/he should be aware of the wide range of accommodation strategies and the location of resources. The mediator should know when and how to bring experts into the process.
4. The mediator must be skilled in facilitative mediation and adhere to the highest ethical standards.
The mediator's role is to serve as a third party neutral to facilitate a voluntary agreement between the disputing parties, not to impose a solution. The mediator must have the impartiality, competency and integrity to mediate effectively, as recommended in the Model Standards of Conduct for Mediators prepared jointly by the American Arbitration Association, the American Bar Association and the Society for Professionals in Dispute Resolution.
5. Opportunities to resolve disputes early through mediation reduce costly and time-consuming litigation.
Mediation is often successful when the relationship between the parties has not been severed. Organizations should provide internal dispute resolution steps when a disagreement or adverse action occurs. For example, it may be appropriate to offer a mediation option when the reasonable accommodation process reaches an impasse. Mediation is the least adversarial method of resolving a dispute, especially important when the goal is to maintain an ongoing employment relationship.
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