Making Mediation Sessions Accessible To People With Disabilities
Mediators have recently become aware of the need to make these mediation sessions
accessible to people with disabilities. This development is largely due to disputes that have arisen
as a result of the Americans with Disabilities Act (ADA). However, all mediation sessions
involving people with disabilities need to be accessible, not only ADA mediation sessions.
(Although this article addresses mediation, in fact, most of the same points apply to other
dispute resolution forms such as arbitration, fact-finding, and ombuds functions.)
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.
Under Title III of the ADA, mediators are required to make their facilities and services (as
those of a "public accommodation") accessible to clients. In actuality, that responsibility may be a
shared one. For example, an employer who uses mediation for an employment disputes has an
obligation to ensure that the session is accessible to the employee with a disability. But that does
not remove the obligation from the mediator's shoulders.
Mediators set the tone for their sessions. The mediator's ability to use appropriate
disability etiquette and language and to handle access arrangements has an impact on the parties'
future interactions, as well as on the interpersonal dynamic of the session.
Pre-session arrangements
When the mediator learns that one of the parties in an upcoming mediation has a disability,
she should arrange to discuss access needs directly with that person. The mediator should not
assume that she knows what will be most effective for the person who has a disability, nor should
she take someone else's word for what his needs are. The person with a disability needs to know
exactly what will happen in the session, in order to describe how to make the session accessible.
 |
A person who is hard of hearing may request an assistive listening device to amplify people's
voices as they speak. However, amplification is not effective for all hard of hearing people, and
real-time captioning may be most effective (like court reporting, with speakers' words typed out
on a screen).
|
In the planning discussion, each aspect of the session that may impact on the person's
ability to participate should be raised: length of session (people with certain physical disabilities
may fatigue easily; people with certain cognitive or psychiatric disabilities may not be able to
concentrate for great lengths of time), need for breaks, best time of day (medication, among other
factors, may influence this), limitations in processing verbal or written information, physical
access, ability to deal with stress, need for water, etc.
|
Persons who have learning disabilities that make it difficult to concentrate may not think to
request that the room be very simple, without loudly patterned curtains or pictures, which could
be distracting.
|
|
If a person is blind or visually impaired, offer to have the parties exchange documents in
advance of the session date. Ask the person about his or her preferred format for the
documents: large print (what point size), audio tape or braille.
|
The parties must agree ahead of time about who will make and pay for the access
arrangements, and on any relevant criterion pertaining to the selection of the accommodation.
|
The ADA requires that a "qualified" interpreter be used when necessary to provide effective
communication for persons who are deaf. "Qualified" is defined as "can interpret effectively,
accurately and impartially both receptively and expressively, using specialized vocabulary."
The parties must agree on whether the interpreter needs to be certified, who will determine
whether the interpreter is qualified, etc.
|
Learn about the disability and relevant access arrangements
While it is true that each person experiences his disability differently and that access issues
need to be addressed on a case-by-case basis, having background knowledge lessens the amount
of planning time. If the person has a disability that the mediator knows nothing about, she can
learn information to make her more effective in mediating a session with this person.
|
Persons with bipolar disorder may, in a manic phase, speak very quickly and jump from topic
to topic. Being prepared for this allows the mediator to strategize about ways to handle it
without making a judgement about the person's god faith effort to participate. For example, the
mediator may decide to summarize frequently in order to ensure that she has not missed
something. By summarizing, the mediator sends a signal that she places considerable
importance on hearing everything the person has to say.
|
The person's disability may cause him to act in ways that are disruptive to the smooth
running of the session. The mediator should not accept disruptions just because the person has a
disability. But with effective planning, one can minimize the negative impact of "disruptive"
behavior.
|
Have a time-out room available for a person with a stress-related disorder. A time-out room
may also be helpful for a person with Tourette syndrome, who may need to release the build-up
of impulses to make sounds.
|
If appropriate, the mediator should ask the person's permission to share information about
the disability with other participants in the session, possibly obtaining an explicit "waiver" of
confidentiality. It may be helpful put the disability information to be shared in writing to be sure it
is acceptable.
|
A person with traumatic brain injury may have poor impulse control and poor social skills.
The person may say something offensive to another party in the session that is based more on the
person's lack of self-control than with any negative impulses. With advance preparation, the
parties can avoid hard feelings.
|
Confidentiality is a significant issue to persons with hidden disabilities. The person may
not wish to self-identify to the other party.
|
A person with AIDS may wish to schedule sessions for times when his medication is not
affecting him. A person with lupus may tire easily and request that sessions be no longer than
two hours. The other party normally does not need to know about this request, and the mediator
is obligated to maintain confidentiality.
|
Attitude of the Mediator
The way that the mediator interacts with the disabled person sets an example. The
mediator should pay attention to her own attitudes, and monitor her responses.
|
If the person has a speech disability, the mediator should give him unhurried attention, avoid
interrupting or completing the person's sentences, and preventing other participants from doing
so as well.
|
|
A person with cerebral palsy may have slurred speech and involuntary body movements. The
mediator's impulse may be to discount what he says, and she may have to remind herself not to
make assumptions about the person's emotional or intellectual capacity based on his
appearance.
|
Persons with hidden disabilities are often disbelieved when they request reasonable
accommodations. If the mediator does not take the person's request seriously, she is not likely to
gain the person's trust. A person who does not self-identify as having a disability, may make a
request that is disability-related.
|
A person may indicate to you that she has trouble handling stress and she is not sure she will
"make it" through the session. Don't dismiss this because you know that a mediation session
can be stressful for anyone. Ask how you can help, and work with her to design ways to deal
with it.
|
If you ignore the person's reasonable accommodation request, you may jeopardize more
than the person's faith in the process; you could endanger the person's health.
|
A person with multiple chemical sensitivity, asthma or other respiratory disability may request
that the room have good ventilation and that other participants not wear fragrances. Although it
might sound strange to you, if you don't meet the person's needs, he may become seriously ill. |
Setting Up the Room
Work with the person to set up the room most effectively. Certain seating arrangements
will impact on the person's ability to participate in the session.
|
People who are hard of hearing rely on seeing the lips of people who are speaking to help
them follow what is being said. Set up the table so that the person can see everyone's face, and
so that others' backs are not to the source of light. Consider using a round table.
|
Introducing the Subject of Access at the Session
Some access plans depend on the cooperation of other participants at the session. The
person with a disability will appreciate the mediator's explaining everyone's role, as long as it is
done in a neutral, appropriate manner.
|
The mediator should let participants know that they should speak to each other and not to the
sign language interpreter, and that they must speak one at a time so that the interpreter can do
her job effectively. Phrased in this way, the deaf person is not singled out.
|
It is not always necessary to be direct. Many process modifications can be introduced as
ground rules, or incorporated into your opening without calling any attention to disability access.
|
The mediator can ask each participant to say something when they are all seated, so that a
person is blind will be oriented as to where each is sitting by their voice. (In a big session, the
mediator can call on people by name before they speak.)
|
Disability-related issues not pertaining to access or to the case itself should not be raised.
The person is entitled to privacy.
|
Comments about a person's guide dog unnecessarily single out the person.
|
Running the Session
Throughout the session, observe disability etiquette and other measures so that the person
with a disability has equal access at the session.
|
Persons with mental retardation learn slowly, and have trouble using what they learn.
Prepare to give directions slowly and clearly. Speak in simple and clear sentences, but don't use
baby talk. Use concrete examples, rather than abstract concepts. Break down complex ideas
into separate components.
|
|
Do not touch a person's wheelchair, cane, crutch or other mobility device; they are part of his
personal space.
|
Possible Disability-Related Behavior
Sometimes, the mediator finds herself dealing with a party who has difficulty participating
in the session. This issue is hardest to deal with in the case of cognitive disabilities and psychiatric
disabilities -- hidden disabilities that may interfere with the person's ability to communicate
effectively. A person with auditory processing disorder (a learning disability) may have difficulty
following what people are saying and/or putting his own thoughts into logical sequence.
The mediator can use the caucus to find out what she can do to facilitate more effective
communication. If the person has not self-identified as disabled, the mediator should simply
address what's going on in the session, and not frame it as a disability issue.
The Inaccessible Session
If the mediator discovers that the session is not accessible, and access cannot be arranged on the
spot, she must reschedule it.
|
For a person with a severe psychiatric disability, the mediator can arrange to co-mediate with
someone who has expertise. Alternatively, the mediator can help the party arrange for a support
person of his choice to attend a rescheduled session.
|
|
If the sign language interpreter is not acceptable, or if there is no interpreter, the session
cannot proceed using writing. Sign language is not a translation of English; many deaf people
have low-level English skills. Conducting the session in written English denies the deaf person
equal access.
|
These are some of the many disability access issues that mediators may encounter. People
with disabilities have the civil right to participate and have equal access in the mediation session.
Through training, preparation and experience, mediators can ensure that they fulfill their
obligation to provide equal access in their mediation sessions.
Common Situations
If the person is deaf, the telephone conversation will most likely be by TTY. The TTY (tele-typewriter) is an appliance with a keyboard and screen that deaf, hard of hearing and speech-impaired people use to communicate by telephone. If you do not have a TTY, the conversation
will be via relay service. In the conversation, the parties need to use short, clear sentences.
For a wheelchair user, be sure that the table is high enough to accommodate a wheelchair and
an accessible path of travel must exist to the meeting room, rest room, and all other areas the
person will be using. It is not enough to ask the facility if these areas are accessible; ask about
specific measurements: 32" doorways, 36" aisles, 5' turning room in the rest room stall, etc. If
the way through the building is complicated, find out the most accessible path of travel and inform
the disabled person of the most accessible routes.
The sign language interpreter must sit where the deaf person can see the persons speaking and
watch the interpreter. Normally this would be next to the mediator, opposite the deaf person's
side of the table.
REPRINTED WITH PERMISSION from the author and publisher from SPIDR NEWS, Spring.
Copyright 1997 by Judy Cohen/Access Resources and by the Society for Professionals in Dispute Resolution, 815 15th Street NW, Washington DC 20005.
Biography
Judy Cohen, a mediator and trainer, specializes in workplace conflict management, focussing on conflict prevention, as well as dispute resolution. Her mediation practice includes extensive experience with discrimination cases, discipline and discharge, and interpersonal relations. She is a widely published, nationally known expert in Americans with Disabilities Act, with disability-related mediation experience in workplace and public accommodations. She also works with small business owners, helping them develop more effective partner relationships ships.
Judith Cohen was formerly an Organizational Development Program Manager at the Flight Standards Division of the Federal Aviation Administration Eastern Region. In this role, she implemented conflict management processes, including conflict coaching, mediation, team-building, group facilitation, training, and consultation, for a work force of 500 employees. She also managed the Model Work Environment and the Employee Attitude Survey projects, providing assistance with facility action plans and organizational change activities.
In her prior position as an ADR Program Manager at the FAA, she designed and implemented the EEO internal mediation program, training and supervising mediators and overseeing the program’s administration and evaluation.
In her mediation practice, Judith is attuned to the underlying issues common in disability-related and other workplace cases. She works with the parties to help them consider the range of potential issues and options, so that they can develop solutions with which they feel comfortable. Judith's training practice in conflict management includes extensive work for government agencies, businesses, non-profit organizations, and labor unions. She designs and provides practical, participatory training programs in collaboration with the client.
Website: www.mediate.com/accessresources
Additional articles by Judith Cohen
Comments
|
|
| Judy Cohen,
NY NY |
accessrs@ix.netcom.com
12/02/00 |
| Mediating with persons who are Deaf |
|
|
|
|
Kenneth Gallant's clarifications are very helpful. This topic warrants its own article. I understand that one will be published in the future at www.directionservice.org, under the auspices of CADRE (Consortium for Appropriate Dispute Resolution in Special Education).
For more discussion on this topic currently, go to www.adamediation.org/forum and go into the conference on Mediating When a Party is Deaf.
Judy Cohen, Coordinator
ADA Mediation Guidelines
|
|
|
|
|
|
|
|
|
|
| Kenneth Gallant,
Little Rock AR |
ksgallant@ualr.edu
09/28/00 |
| Deafness, Writing and Sign Language |
|
|
|
|
Judy Cohen's remarks that using writing instead of sign language for deaf people denies them equal access is sometimes true, sometimes not.
Some deaf people are more fluent in written English than American Sign Language (which is not a word-for-word copy of English--using it *does* require translation, creating all the issues that exist whenever translations are used). (At least one other common sign language is closer to English.)
Moreover, when one uses TTY over the telephone, as Ms. Cohen suggests, one is using written language.
One must ensure that all those using TTY's are capable in the written language being used.
The issue is not sign language versus writing, but determining what mode of communication will give fullest access to the particular people involved in this mediation. |
|
|
|
|
|
|
|
