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The ADA Mediation Guidelines: A Community Collaboration Moves the Field Forward

by Judy Cohen
January 2002 Judith Cohen

The Americans with Disabilities Act ("ADA"),[1] was the first civil rights statute to explicitly encourage the use of Alternative Dispute Resolution ("ADR") in the settlement of disputes arising under its provisions.[2] The text of the Act itself refers to a variety of ADR methods, including mediation, arbitration and mini-trials.[3] The explicit integration of this wide range of ADR processes into the statute indicates that Congress was aware of the intrinsic efficiency of various ADR approaches. Such approaches could help alleviate the potential clogging of court dockets with disability cases.[4]

The usefulness of mediation in addressing a complexity of issues, such as those presented in ADA cases, has been well documented and discussed. Mediation is especially well suited for resolving ADA complaints. The case-by-case approach required by the variety of disabilities makes an interest-based process, such as mediation, potentially more productive for the parties than adjudicatory processes. Where legal and public policy interests are not addressed adequately, however, the reality and the perception of mediation as a fair process for addressing areas like the ADA is jeopardized. Mediation providers and users must be aware of risks to the rights of disputants, plaintiffs and defendants alike, when safeguards and quality control measures are not established.

The purpose of this article is to describe 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 ("WG"), evolved from informal discussions regarding the lack of standards in ADA mediations and the need to address the quality of the process. The WG raised the following questions, among others, in its internal discussions: What constitutes effective ADA mediator training?[5] Are ADA disputes issues of private concern between the parties, public policy concerns, or both?[6] How can mediators resolve the tension between self-determination[7] of the parties and a fair process, especially when one party is not represented?[8] How does the mediator handle uninformed ADA mediation parties, when the mediator knows the legal and disability-related information that the parties are lacking?

These discussions led, in part, to the development of ADA Mediation Guidelines ("Guidelines"). This article will provide a historical overview of ADA mediation developments and detail the first stage of implementation of Guidelines.

ADA MEDIATION – THE EARLY DAYS

Early 1990s

When the first ADA mediation program was launched in 1991,[9] no one knew quite what to expect. Some state and local laws, including the Rehabilitation Act of 1973[10], already protected the civil rights of people with disabilities. However, mediating these disputes was new territory. In fact, the field was so new that the U.S. Equal Employment Opportunity Commission ("EEOC") pilot program[11] did not mediate claims for "reasonable accommodations."[12] The ADA had just been passed and the EEOC staff could not be expected to have experience dealing with "reasonable accommodations" for people with disabilities.

Soon after the launching of the EEOC pilot program,[13] the U.S. Department of Justice ("DOJ") undertook the task of training experienced mediators to mediate claims arising under Titles II (Public Service) and III (Public Accommodations) of the ADA.[14] This rights-based mediation program is notable for its high level of technical support for its mediators when questions arise pertaining to law. This guidance given to ADA mediators was an early indication of the impact of substantive information on the process.

Agencies charged with enforcing civil rights statutes, including the EEOC, DOJ, and state and local agencies, began to institute more formal programs in the early 1990s. These programs used both internal staff mediators and external pro bono mediators. These agencies' duties traditionally involved investigation and advocacy in the civil rights arena. However, conflicting interests and goals arose within the ADR programs of enforcement agencies, which – like many other ADR programs – were legitimately concerned with settlement numbers. Pressures to settle cases and clear the backlog created difficult conflicts of interest for agencies that were charged with enforcing the law and public policy. The question of how to define mediation "success" in ADA and other EEO mediations has yet to be answered adequately.

Mid-1990s

By the mid 1990's, traditional mediation service provider organizations, including community mediation programs and private mediators, began to offer ADA mediation. Some of these programs focused on ADA mediation and offered specialized training. One such program, through the Massachusetts Association of Mediation Providers and Professionals ("MAMPP"), began in 1993. It was one of five pilot sites that the DOJ Disability Rights Section ("DRS") selected to mediate Titles II and III ADA cases. The intention was that the DOJ DRS would refer cases to the pilot sites for mediation. By the mid 1990s, while it had not handled many cases, MAMPP had developed a collaborative relationship with the Disability Law Center in Boston. The Center became a steady referral source for Titles II and III cases. Most of its work has been in Title III, with a few Title II higher education cases. One of MAMPP's cases, for example, involved a large civic center that had wheelchair seating but did not always reserve it for wheelchair users, sometimes leaving them without available seating. As a result of this mediation, the civic center reserved seating for wheelchair users and their companions.

According to Sally Higgenbotham, ADA Mediation Project Coordinator:

Considering that a judge could have decided this case, mediation was significant in several ways. First, the civic center resolved the matter privately. While the results would of course be public, the process was private. Second, the parties met face to face, devising a solution between them versus having a solution imposed by a judge; so the parties retained control over the outcome. Third, when disputants can affect a solution that works for each of them, it is empowering for both sides. And last, the mediation was free to the participants. The ADA Mediation Project is a low-cost process that keeps decision-making in the hands of the parties.

Some mediation provider organizations, such as the Federal Court mediation programs, simply accepted ADA mediation cases along with their regular caseload. The mediation program of the United States Court of Appeals for the Second Circuit was actually started in May of 1974,[15] when ADR was barely talked about. According to Frank Scardilli, Senior Staff Counsel and Chief Circuit Mediator, the program was initiated by then Chief Judge Irving R. Kaufman who had settled many cases as a trial judge and wondered why they could not settle cases on appeal. The Second Circuit set up a pilot mediation project, which is now an established program, staffed by internal mediators who handle a growing number of employment discrimination cases. Mr. Scardilli commented, "With ADA cases, specific criteria have to be met for the plaintiff to be considered disabled under the law. It is important that the mediator understand this and be aware of the elements of a cause of action under the ADA and case precedent."

Rapidly increasing numbers of state and local civil rights agencies established mediation programs in the mid-90's.[16] The mediation program at the Illinois Department of Human Rights began as a pilot project of the Chicago Bar Association in July 1994. The Department uses mediators trained and certified by the Center for Conflict Resolution in Chicago, a not-for-profit organization that uses volunteer mediators. According to Alice Ralph of the Department, all of the mediators receive training in discrimination charges, most of which are employment discrimination charges. A smaller number are public accommodation discrimination charges. Since the Department is a state agency, it does not enforce the ADA; rather, it enforces the Illinois Human Rights Act. Ms. Ralph said that, "Since the beginning of the Program, over 1,000 settlements have been reached: that is over 50% of the cases that are actually mediated."

While some of the programs trained mediators in civil rights law and disability awareness, many of the mediators who handled these cases lacked either legal experience in handling disability claims or knowledge of disability issues. In fact, even mediators with expertise in disability law and issues did not have a complete understanding of the unique issues that arose in this new, undeveloped area of mediation.

Practitioners began exploring these issues in a variety of settings. For example, the Disability Mediation Center, an on-campus mediation and conciliation clinic at Loyola Law School in Los Angeles, was designed to offer mediation in all types of cases involving persons with disabilities. The mediator training includes a disability awareness component, an explanation of ADA mediation practice issues, and four-hour courses in disability law. At the time, the Center offered 60 hours of "supervised work at the Center" as part of the training.

The Institute for ADA Mediation is a non-profit center providing information and education on accommodating employees with disabilities. The Institute established its two-day training course, "Resolving Workplace Disputes Involving Individuals with Disabilities," to provide ADA mediators with an understanding of the legal framework and sensitivity in interacting with persons with disabilities to make ADA mediation effective. The Institute's course was approved for continuing legal educational credits by the Kentucky Bar and, reciprocally, with other states. The Institute's Tenets for ADA Mediation provides a helpful overview to ADA mediation issues, and can be obtained through the Institute's web site.[17]

Late 1990's

By the late 1990's the federal sector began to offer extensive EEO mediation, including Rehabilitation Act cases, to resolve their internal employment disputes, most often at the pre-investigation, pre-formal complaint stage. According to Deborah Laufer, Director of the Federal ADR Network, "In the 1990s, passage of the Administrative Dispute Resolution Act and revision of the EEOC's rules governing Federal EEO complaints galvanized agencies to incorporate ADR mechanisms within their EEO process." The Department of the Air Force, the Department of Veterans Affairs, the US Postal Service (known for its extensive program that uses private sector neutrals), the General Accounting Office and the Department of Energy (both leaders in integrating workplace grievance and EEO programs), the Internal Revenue Service (notable for its Conflict Management Initiative that was developed with the cooperation of the employee unions), the Federal Deposit Insurance Corporation, and the Department of Health and Human Services (which also administers a shared neutral program) all became leaders in the use of workplace ADR techniques.

The EEOC's initial pilot project in the early 1990's was the building block for a major mediation program launched in April 1999. During the first fiscal year of the program, 1,720 ADA cases were mediated through the EEOC's ADR program, which used contract, pro bono, and internal mediators. As the Department of Justice program continued from the early 90's, 210 ADA cases were mediated through winter 1998.[18]

The Key Bridge Foundation was awarded a contract by DOJ as part of a settlement agreement with Bass Hotels & Resorts to mediate disputes with hotel guests.[19] While figures on the number of mediations conducted through this settlement agreement were not available, the fact that mediation was written into a major settlement agreement demonstrates the extent to which mediation is used as a part of the civil rights enforcement system.

These exposures and experiences began to awaken the mediation community to the unique aspects of ADA mediation. But the ADA mediation field appeared to be developing in a vacuum, lacking a collective dialogue or theoretical consideration.

THE ADA MEDIATION GUIDELINES WORK GROUP STEPS INTO THE BREACH

Developing A Draft

Amidst these developments, mediators around the country involved with ADA mediation had been informally discussing amongst themselves the lack of standards of practice and the need for clear training guidance in this new, developing field. In January of 1998, a number of these mediators joined together on a volunteer basis to address these concerns about the quality of the process. This ad hoc Work Group included a number of mediators who specialized in the ADA, as well as ‘generalist' mediator liaisons from mediation organizations and programs around the country. Half of the members had disabilities.

The WG decided to initiate a public dialogue involving mediators, mediation administrators, stakeholders, and advocates.

The Public Dialogue Begins

The WG's plan included posing tentative answers to the questions in a draft document; soliciting feedback from the community of ADR providers and users; and synthesizing the responses into standards of practice for ADA mediation providers and trainers. The WG hoped that these standards would also provide ways to measure the quality of service for ADA mediation consumers and funders. Over the course of eight months, the WG, in consultation with others in the field, produced the "Draft ADA Mediation Standards" ("Draft"). [20]

In September 1998, the Draft was released and widely distributed for comments from mediators and dispute resolution provider and professional organizations, stakeholders, and advocates. Comments regarding the Draft were presented and discussed in a variety of settings, including at meetings and conferences around the country.[21]

Professor Maria Volpe, Convener of the CUNY Dispute Resolution Consortium, hosted a public forum on November 18, 1998 to gather input from the academics and practitioners in the New York City metropolitan area. Professor Volpe commented, "It is important for the dispute resolution community to fully participate in the emergence of new developments that impact on the practice of dispute resolution, particularly when substantive concerns are involved like the ADA. The forum provided attendees with an opportunity not only to comment on a new set of guidelines but also to learn about a new area of practice."

The Draft was posted on numerous web sites, including, notably, mediate.com, which has continued to be an ADA mediation resource for the community, through its ADA mediation page. Many other organizations established links to the Draft at mediate.com. WG members met individually with mediation leaders to gather input and ideas from people from both sides of the table. In addition, a wide range of periodicals, including the major mediation publications, posted announcements and articles about the Draft.[22]

The public response to the Draft was tremendous. The Work Group received a substantial number of written and verbal comments. The WG implemented an extensive revision based upon these comments. The new version, titled the "Interim ADA Mediation Standards,"[23] was released and widely circulated for public comment in April of 1999, seven months after the release of the Draft. The WG suggested that the providers put the Interim Standards into practice and share insights as to where the Standards needed more development or modification.

The WG had decided that the Standards needed to comply with already existing and accepted mediator standards. The group received detailed comments from Larson Frisby, of the ABA Governmental Affairs Office and Legislative Liaison for the Section of Dispute Resolution. Mr. Frisby pointed out areas that the Draft appeared to conflict with the ABA Model Rules on Professional Conduct.[24] The WG addressed these conflicts by modifying the Draft's language to bring it into conformity with the ABA standards.

Some of the Guidelines presented new ideas to the mediator community, such as the inclusion of disability awareness training. The WG added examples of potential situations, included in an Appendix, to illustrate the importance and potential use of the new guidance.

SPECIFIC CONCERNS OF THE WORK GROUP

Party Capacity

Work Group members felt uncomfortable with mediators deciding whether parties were "competent" to participate in mediation. Lela Love, Director of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, among others, expressed the view that mediators frequently had to address this issue. Therefore, it was important for the WG to provide guidance in this area.

The WG developed and expanded the "Party Capacity" section with the valuable assistance of Erica Wood, Associate Staff Director of the ABA Commission on Legal Problems of the Elderly.[25] This section discusses what a mediator should look for in assessing capacity as well as the obligation to accommodate mediation participants who might have impaired capacity, so as not to exclude them from the process.

This tough issue gave rise to another: the implications of discussing capacity as a disability issue. The potential for over-focusing on disability during the mediation process also arose with the WG's recommendation that the mediator research the particular disability at issue. Marilyn Golden, Policy Analyst at the Disability Rights Education and Defense Fund, was only one of the commenters who expressed concern that such emphasis could play into stereotypes and cause the mediator to view the person with a disability in terms of the disability, and not as an individual. There was also a concern that such a focus would be perceived as advocacy. This section was modified to clarify that such background research was not always necessary and that, in any case, the most relevant information would be presented in the mediation by the parties and their representatives.

Mediator Competency

John Doggette, Executive Director of the Community Mediation Center in Knoxville, Tennessee, recently commented that the Guidelines should clarify just how important it is for mediators to research the disability at issue, in an effort to bring some understanding of the disability to the table. He adds a cautionary note: "As a mediator I would have to be alert in listening to the other party in the dispute who might not be ‘used to' participating with a person who has a disability and might feel the mediator was giving preference." This is apparently an area where the WG has not yet been able to strike the right balance in the Guidelines.

Reasonable Accommodation Negotiations

Insights from advocates and stakeholders from both sides of the table were essential to ensure that we presented a balanced view. Evan Spelfogel, of Epstein Becker & Green, a management-side firm, pointed out that the interim language on mediating reasonable accommodations appeared to imply that an accommodation was automatically justified. In response, we changed the language to read, "where reasonable accommodations are an issue."

Mediation Participants

In many cases, substantive knowledge and understanding of the disability is essential to meaningful resolution of the case. Frequently the parties and their representatives are not equipped to provide all the information and analysis necessary for effective reality testing and option-building. Perhaps the most important contribution that the Guidelines made to ADA Mediation practice is the technique of using resource people, or neutral experts. The Guidelines made clear, however, that the expert was to be brought in for information on the disability, not on the law.

Providing Information to Parties

One of the biggest dilemmas for the WG was the Draft's suggestion that mediators may provide dispute-related legal information or disability-related information to the parties. The overwhelming response to this was that the line between advice and information was a difficult one to draw. Those WG members who were ADA mediators embarked on this project believing that it was advisable for mediators to educate the parties about disability and about the law. Experience began to show us that the parties could perceive any information presented to them as favoring one party over the other. This raised the generic mediation ethical issue of "impartiality."

We also received feedback from mediation participants that ADA mediators were sometimes advising parties and providing legal or disability-related information, which they were not perceived to be qualified to provide. Finally, the choice of what information to provide may constitute the unauthorized practice of law, as the mediator makes conscious decisions about what information applies to the case.

The lack of representation for the parties in this legal area is a growing concern as mediation is used more and more frequently to address ADA and other civil rights disputes. While the WG did not come up with a solution to this problem, it did set some parameters for mediator practice to address the difference between "fair process" and "self-determination."

Party Preparedness

We received invaluable input from Margaret Shaw, of ADR Associates, who helped us craft our guidance on "Party Preparedness." She recommended that mediators not only advise parties that they may obtain legal counsel, but also advise them of the consequences of not doing so. The WG amended earlier guidance suggesting that mediation programs needed to provide ADA technical assistance, in response to feedback from a number of individuals, including Ms. Shaw. The common view was that this could be a burden to many small provider organizations and to private mediators, unless they had specific funding to provide ADA mediation services, and might discourage them from implementing the Guidelines at all.

The WG discussed the many comments received and a final version, now known as the ADA Mediation Guidelines, was issued in February 2000. However, in May 1999, we had already seen an encouraging sign: a brochure promoting a 16-hour ADA mediation training, provided by Framingham Court Mediation Services. This brochure states, "The training is designed with the Massachusetts Commission Against Discrimination (MCAD) Mediation Criteria (96-1), SPIDR's Due Process Protocol and the Draft ADA Mediation Standards in mind." The Guidelines were on its way.

THE FIRST YEAR OF THE ADA MEDIATION GUIDELINES

Institutional Home

Upon publication of the Guidelines in February of 2000, the WG disbanded. Judith Cohen, the author of this article, stayed on as Project Coordinator. The Guidelines found an institutional home at the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, under the direction of Professor Lela P. Love. Here they were posted on the web site of the Cardozo Online Journal of Conflict Resolution ("COJCR").[26] The COJCR editors researched and installed hyper-links to all references and resources mentioned in the Guidelines.[27]

ADA Mediation Forum

Funding was provided by the Bell Atlantic Foundation[28] to develop an online discussion group, the ADA Mediation Forum ("Forum").[29] The purpose of the Forum is two-fold: first, to provide a venue for practitioners and mediation participants to post queries and share ideas; and second, to continue the community collaboration begun during the initial development of the Guidelines. The Guidelines was established at a time when the field was still young. By continuing and fostering the dialogue, the Forum can contribute to the further development of some future revision of the Guidelines when the field is more mature.

Over the year, the Forum has developed into an ADA mediation resource center that announces ADA mediation developments, such as training and publication of articles. Because anyone can post on the Forum, organizations offering ADA mediation training have access to this venue to announce their programs. This helps the field and the individual practitioners, as well as the individual programs. Although the Guidelines have suggested a 14-hour minimum for ADA mediator training, even programs that do not meet this guidance are free to post.

The ADA Mediation Forum has had active dialogues throughout the year. Divided into "conferences" on topics of interest, the Forum has had over 100 postings. There are nearly 200 subscribers and many more non-subscribing visitors.

Booklet

The Bureau of National Affairs donated the design and printing of 10,000 copies of the Guidelines in booklet form, first released at the American Bar Association Dispute Resolution Section conference in April 2000. While we encouraged interested persons to read the hyper-linked version and download the Guidelines from COJCR, we also announced that bulk numbers of booklets were available for distribution to organizations and conferences.[30] These booklets were distributed in a period of several months to a range of requesting organizations. Publishers Jossey-Bass and Pike & Fisher then donated the printing of 1,000 more booklets. The American Bar Association Commission on Mental and Physical Disability Law has contributed toward a third printing of 5,000 booklets.

Funding provided by the Bell Atlantic Foundation was used to produce the Guidelines in alternative formats, including Braille, audiotape, computer disk, and large print. The ABA Section of Dispute Resolution and its Lawyer Citizen Problem Solving project, funded by the Hewlett Foundation, donated funds to provide shipping of the Guidelines.

Demonstrating broad support from important players in the dispute resolution world, the American Bar Association Section of Dispute Resolution (ABA DRS), the National Association for Community Mediation (NAFCM) and the City University of New York Dispute Resolution Consortium (CUNY DRC) all agreed to have their contact information printed in the booklet for members of the public to request copies directly from them.

Outreach and Education

The publication of the Guidelines generated great enthusiasm in the dispute resolution community. The Guidelines was reprinted in full by ADR Report[31] and by World Mediation & Arbitration Report,[32] and publication of the Guidelines was announced in most of the major ADR publications. In one such example, the American Arbitration Association's Dispute Resolution Times, wrote, "The first guidelines for mediation under the Americans with Disabilities Act (ADA) have been released…. to explain some of the special requirements unique to mediation under the ADA… Among other recommendations, the guidelines propose that advanced ADA training be required for mediators and mediation program managers."[33]

Throughout the year, a number of dispute resolution, legal and advocacy groups requested presentations on the Guidelines. Jay Waks, Chair of the Employment Committee of the CPR Institute for Dispute Resolution, said, after a May 25, 2000 presentation and discussion with the Committee, "The ADA Mediation Guidelines add significantly to the understanding and application of ADR in regard to workplace disputes. We look forward to reports on the Guidelines successful utilization." A diverse group of providers, including the JAMS Employment Group (November 21, 2000), the In-House Employment ADR Benchmarking Group (January 10, 2001) and neutrals at a number of Federal agencies, including the Department of Justice (June 30, 2000), requested presentations. These presentations provided a venue for an interactive dialogue about practical ways to implement the Guidelines.

Stephanie Morse-Shamosh, First Vice President, Program Facilitator for Paine Webber's Issue Resolution Office and Chairperson of the In-House Employment ADR Benchmarking Group commented, "Employment ADR programs like Paine Webber's F.A.I.R. Program, are all about creating options for resolving workplace disputes. The new ADA Mediation Guidelines provide a comprehensive and thoughtful road map for making the process of mediation more accessible and meaningful to parties involved in conflict over disability-related issues."

The presentation at the US Department of Transportation ("DOT") (December 8, 2000) included a role-play of the type of mediation that might actually take place under its auspices. Judith S. Kaleta, Senior Counsel for Dispute Resolution at the DOT, remarked, "Until the Civil Rights directors and mediators saw their colleagues acting out a role play of the guide dog user and a bus driver, they did not have an understanding of what the potentials were for implementing the Guidelines into the DOT mediation program. It helped their insights so much."

Referring to a presentation made to the JAMS Employment Group (November 21, 2000) mediator David Ross said, "We found the guidance on how to be aware of and sensitive to the special issues that arise regarding party capacity to be very useful. Addressing the threshold question of whether a party to a mediation has the capacity to do so in an informed and meaningful way in many ways illuminates process issues that any effective mediator needs to tackle from the very start."

The Guidelines is being used as a model in the field and have been frequently referenced as a resource in workplace and community mediations. Training Notes on "Listening" in NAFCM's Community Mediator, and the National Technical Assistance Center for State Mental Health Planning cite to the Guidelines, and it is listed in Dispute Resolution Journal (November 2000-January 2001) as a recent acquisition by the American Arbitration Association library.

"There are steps that mediation providers can take to better … foster the development of a fair and effective mediation process for all parties …," writes EEOC Commissioner Paul Steven Miller, citing to the Guidelines.[34] Commissioner Miller discusses four major areas addressed in the Guidelines, stressing that "Mediation providers should advise mediators and the involved parties that accommodations will be provided if needed to facilitate accessibility to the mediation process. Mediators should also have in place policies and procedures concerning accommodation requests." While some mediators have expressed discomfort with keeping disability-related information confidential, Commissioner Miller states that "Mediators and mediation providers should always maintain confidentiality with respect to the health and disability-related information that is disclosed for the purpose of providing reasonable accommodation or in the course of the mediation, unless a party authorizes the disclosure …" Commissioner Miller further concurs with the Guidelines in stating that "…diversity recruiting efforts should include seeking out qualified mediators who have disabilities" and that training programs for ADA mediators should include disability awareness.

In The Community Mediator (National Association for Community Mediation, Winter 2001), Ben Carroll references the Guidelines in discussing listening challenges in mediation. Mr. Carroll discusses use of sign language interpreters as discussed in the Guidelines and comments on the use of disability etiquette, such as "addressing the deaf person rather than looking only at the interpreter."

IMPACT ON THE FIELD

The Guidelines have had wide-ranging implications for the field of mediation, and their impact continues to grow. The Guidelines have raised a new consciousness about the participation of persons with disabilities in mediation: that disabilities are not automatic signals to exclude such parties; rather, disability access must be addressed to allow for each party's fullest participation in the process. The Commercial Division of the Supreme Court, New York County, under the leadership of the Honorable Stephen G. Crane, has modified its "Standards of Conduct for Mediators" to provide that court mediators must be "mindful of obligations under the Americans with Disabilities Act." This represents a significant movement from many mediator ethical codes, which provide that mediation sessions may be terminated if one of the parties cannot participate because of a mental or physical disability.

This new approach to disability access in mediation conforms to the views expressed by John L. Wodatch, Section Chief, Disability Rights Section, U.S. Department of Justice, in his informal guidance letter, to Judith Cohen, of May 28, 1998. Mr. Wodatch stated that arbitrators fit into the category of "or other service establishment" as identified in Title III of the ADA as covered entities: "It it [sic] the Department's view that the office of a professional arbitrator provides services in a manner that is analogous to those offered by the lawyers, accountants, and insurance providers expressly listed in the statute. Therefore, arbitrators are encompassed with the phrase ‘other service establishment' and they are obligated to comply with Title III."[35] Presumably, this guidance applies to mediators, and mediation provider organizations, as well as to arbitrators.

Hopefully, other mediation provider organizations will respond to this more appropriate approach to mediation involving persons with disabilities by including an obligation to make the process accessible as a provision of mediator ethical codes.

The National Council on Disability suggests that the mediation programs of the EEOC and the DOJ should "adopt standards along the lines of the ADA Mediation Guidelines to govern mediations of ADA disputes.[36]

The Capacity Section of the Guidelines has been widely discussed. Erica Wood noted on the ABA Commission on Legal Problems of the Elderly listserv, COLLABORATE,[37] that at a Conference on Legal and Ethical Issues in the Progression of Dementia, the working group on "Dispute Resolution and Dementia" based some of its work on the "Party Capacity" section of the Guidelines and referenced it as a "framework for defining capacity" in its recommendations. Ms. Wood has recently published a paper on "party capacity".[38] Ms. Wood specifically references the Guidelines, noting, "It has advanced the field and offered a good starting point."

Barbara Moidel, a trained and certified Navy mediator,[39] has been asked to mediate numerous ADA cases for the Navy and for other federal agencies as part of the Federal Shared Neutrals program. Ms. Moidel has found the Guidelines "extremely beneficial in providing a mediation session which accommodates needs of the participants," especially if she finds the need for an outside expert or interpreters. She describes the use of a neutral expert in one of her cases involving an individual with a rare, progressive neurological disease. As is suggested in the Guidelines, she contacted a national organization charged with public education. She was able to find a local Board member who agreed to participate in the mediation as a resource person. Ms. Moidel notes, "The person was beneficial in educating the employee and management with regard to both abilities and limitations. He served as a real ‘eye opener' and helped with reality testing."

THE COLLABORATION CONTINUES

Guidelines has been a real "eye-opener" for many mediation practitioners. The Guidelines, as a work-in-progress, will continue to conform itself to the growing needs of the world of ADA mediation practice. As the Guidelines is disseminated throughout the community of mediation providers and users, it influences the culture of ADA mediation significantly. Just as the Work Group had hoped, valuable substantive discussion and critique by practitioners have contributed to the actual development of the Guidelines, making it viable in mediation practice.

Bruce E. Meyerson has suggested that the Guidelines distinguish between the varying nuances of mediator ethical obligations based upon party representation.[40] He notes that the Guidelines urge the mediator to "make every effort to ascertain whether the parties have a sufficient understanding of … rights and obligations under the ADA, and the implications of (a) any agreement … or (b) decision to reject an offer …." Meyerson comments, "These provisions place a weighty, but not inappropriate, obligation on the mediator when the parties are unrepresented. But is it an appropriate obligation if the parties are each represented by counsel? Most mediators probably would assume that the parties' counsel are responsible for ensuring that their clients understand the settlement issues."

Meyerson's valid concerns relate to an important issue raised by Ellen Waldman. She expresses the compelling view that the Guidelines does not adequately address the mediator's role when surrogates do not accurately represent the value and interests of their clients.[41] Waldman writes, "This…assumes that surrogates can effectively put themselves in the shoes of the incapacitated party and make decisions that mirror those that would have been made by the party. However, clinical studies of surrogate decision-making in the bioethics arena suggest that surrogates frequently are unsuccessful in predicting [this]." Waldman concludes that, "It may be better to simply call for an end to the mediation process when party capacity cannot be achieved." Such parties may proceed to litigation, represented by an attorney "charged with zealously guarding their rights and interests under the law."

Additionally, Karen Mosher, PhD,[42] who has conducted training in mediating with persons who have mental illness, suggests a re-thinking of the section on "Party Capacity." Mosher comments that "there are times that the use of a support person to raise the level of a person's capacity to enable their [sic] full participation should not be a separate, second step, but could actually be considered the accommodation in and of itself." Furthermore, Dr. Mosher points out that "A person with impaired capacity may require a support person, who knows them and understands how they think and communicate, to successfully complete the initial screening, such as helping them understand the nature of the process."

A query raised by a mediation party led to a discussion on the Forum about mediators charging for their case development time in discussing accessibility for the session and about charging for travel time and expenses when such travel is due to needs of the person with the disability. Forum subscribers reached a consensus that parties should not be charged for the time that the mediator takes in planning for access, as this is part of providing access for which the "service establishment" may not charge. This will likely be incorporated into future versions of the Guidelines. The question of when travel becomes an undue burden has not yet been resolved, but it is an important issue that does need to be addressed by ADA mediation providers.

The concerns of the Guidelines regarding "Party Preparedness" are reflected in the approach adopted by The Disability Mediation Center ("Center"), one of the pioneers in the development of ADA mediation practice. The Center provides a model approach to "Party Preparedness" which other programs may want to emulate in providing effective mediation. Former Director Lynne Bassis explains that parties are advised to contact EEOC, Disability and Business Technical Assistance Center, and/or Job Accommodations Network to understand their rights and responsibilities so as to reduce the amount of time spent in mediation when parties are not informed. The Center ensures that the participants are informed as to their rights and responsibilities by making pre-mediation process calls to the parties. Ms. Bassis explains, "In cases where the employer has counsel, and the employee does not, by requiring the employee to contact these resources, the mediator is less likely to be drawn into the power imbalance and is less likely to be leaned upon for information."

While the Disability Mediation Center's attempts to address power imbalance and party preparedness in advance of the session are significant, advance consultation with technical assistance resources is still not an effective substitute for legal counsel when legal rights are at stake. The issue of representation in rights/interest-based mediation remains to be addressed by the stakeholders and the legal community.

The Center also provides training for law students of Loyola and elsewhere through clinic participation and weekly topical seminars on topics such as the role of attorney as advocate in mediation, stages of mediation, confidentiality, standards of practice, and ethical issues in ADA mediations. The WG discussed, but did not address, the lack of disability awareness on the part of many attorneys who handle disability-related cases. The Center is meeting this challenge by helping to prepare future attorneys to handle ADA cases most effectively.

The emergence of the Guidelines comes at a time of subtle change in the mediation field. The enthusiastic broad-brush promotion of mediation is being tempered with a more thoughtful, critical approach to practice that addresses nuances and difficult issues in specialized areas of practice. The Guidelines have brought ADA mediation into the fold with family and environmental mediation as a model for specialized practice. At a recent workshop at the National Symposium on Dispute Resolution in Special Education sponsored by Consortium for Appropriate Dispute Resolution in Special Education Cases ("CADRE"),[43] there was a session focused on applying lessons learned from developing the ADA Mediation Guidelines to the development of guidelines for special education mediation. The session attendees discussed the potential for a similar application related to mediation under the Individuals with Disabilities Education Act ("IDEA").[44]

At the Commission on Human Rights of the City of New York, the public interest is represented by a legal staff member who participates in mediations specifically for the purpose of representing the public interest. However, by and large, the conflicts regarding the private mediation of public policy issues still remain to be addressed adequately in the sphere of civil rights and mediation. "Promises to Keep" notes that "The overall and ongoing challenge is to achieve a proper balance between strategies that provide efficient and nonlitigious solutions to individual problems and those that use the individual problem as a means for achieving more widespread change."[45]

With the participation of the community of providers and users, the Guidelines has provided preliminary answers to some of the challenges facing ADA mediators and mediation participants. The significant strides made through applying the Guidelines has increased the mediation community's awareness of what remains to be done. Independent data measuring the fairness of the process is sorely needed to supplement the existing data on "success" numbers. The extent to which disability civil rights is undermined by the now widespread use of mediation to address discrimination charges needs to be measured and addressed by meaningful strategies to continue to offer the parties choices and the opportunity to participate in designing their own resolutions. In-depth interviews with large numbers of mediation participants are required to accurately assess and address the dilemmas facing the field. We need to look at the qualifications of mediators (what ADA mediators bring to the table and what is lacking); conflicts of interest for ADA external workplace mediators who are hired by the employer and depend on the employer for repeat cases; the role of program staff in the ADA mediation process (guiding the process, encouraging or coercing settlement, enabling or obstructing the participation of resource persons and representatives); and self-determination and informed decision-making by the parties. We can look forward to seeing the Guidelines followed and further developed by ADA mediation providers.

The author expresses her appreciation to Anne Thomas, former Director of EEO at the University of New Mexico, currently Executive Secretary to the Appeals Committee at The World Bank, and a member of the ADA Mediation Guidelines Work Group, for helpful review of an early version of this article. Heartfelt thanks go to Editors Leila Zubi and Margaret Sweeney and the COJCR editorial team for their patience and hard work in preparing this article for publication. Many thanks to the people who allowed the author to share their thoughts and comments in the article, and to those who continue the collaboration.

Judith Cohen is Executive Director of Access Resources, a workplace mediation and training firm specializing in Americans with Disabilities Act. She was coordinator of the ADA Mediation Standards Work Group and is currently the ADA Mediation Guidelines Project Coordinator at the Cardozo School of Law Kukin Program for Conflict Resolution.


[1] 42 U.S.C. § 12111 et. seq. (1990).

[2] 42 U.S.C. § 12212. See H.R. Rep. No. 101-485 Pt. 3 at 76-77 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 499-500 (stating in part that the Committee adopted an ADR provision while considering the bill in order to encourage alternative means of dispute resolution. The Committee emphasizes that the ADR provision is voluntary and is consistent with the Supreme Court's interpretation of Title VII of the Civil Rights Act of 1964, whose remedial provisions are incorporated by reference in Title I [of the ADA]); See also, H.R. Rep. No. 101-596 at 89 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 598. See also 42 U.S.C. § 1981 (1991), the Civil Rights Act of 1991, in which Congress encouraged the use of ADR in other civil rights statutes.

[3] "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini-trials, arbitration, is encouraged to resolve disputes arising under this chapter." 42 U.S.C. § 12212.

[4] See U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act of 1990 (ADA) Charges FY 1992-FY 1999, available at http://www.eeoc color=#000000>.gov/stats/ada-charges.html (last visited Apr. 18, 2001).

[5] Mediator training courses content that included legal information, disability awareness, and ADA mediation process issues, were not common at the time the Work Group initiated its discussions.

[6] Settling civil rights disputes privately raises questions of public policy, especially when agreements may not comply with legal requirements or when protected parties or covered entities are not informed of their rights and responsibilities. What is the role of mediators – essentially process people – in this discussion? Disability rights activists, whose agenda is the eradication of discrimination against people with disabilities, and plaintiffs' attorneys, who are charged with defending the individual rights of their clients and getting the "best deal" they can from mediation, disagree on this issue.

[7] While self-determination has been viewed, on a superficial level, to simply mean that the parties themselves make the decisions, it seemed to many of us in the field of ADA mediation, that self-determination was meaningless if the parties were not making informed decisions.

[8] Two basic tenets of mediation ethics, ‘self-determination' holds that the parties are the decision-makers and ‘fair process' speaks to the parties' right to an honest process conducted by an impartial neutral.

[9] See U.S, Equal Employment Opportunity Commission, History of EEOC Mediation Program available at http://www.eeoc.gov/mediate/history.html (last visited April 22, 2001); See also Ann C. Hodges, Mediation and the Americans with Disabilities Act, 30 Ga L. Rev. 431 (1996).

[10] See 29 USC 791 et seq.

[11] This program is well documented by Ann Hodges, see supra note 9 at 446-447, and the Administrative Conference of the United States report ("ACUS").

[12] The term "reasonable accommodations" refers to the modification or adjustment of a job application process to enable qualified applicants with disabilities to be considered for employment. In addition, the term refers to the modification or adjustment of the work environment to allow employees with disabilities to perform the essential functions of their positions. Reasonable accommodations also enable these employees to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities. This process can include: making existing facilities readily accessible to and useable by employees with disabilities; job restructuring; and reassigning or retraining employees for alternative positions equivalent in terms of pay, status, responsibilities, and other working conditions. 29 C.F.R. § 1630.2 (o) (1997); See also EEOC Enforcement Guidelines: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act available at http://www.eeoc.gov/docs/accommodation.html (last visited April 22, 2001).

[13] See Hodges, supra note 9, at 453, "[t]he Department of Justice awarded an additional grant in 1994 for an ADA education and pilot program for professional mediators"; See also Key Bridge Foundation ADA Mediation Program Funded by the U.S. Department of Justice available at http://www.keybridge.org/ada_main (last visited April 22, 2001).

[14] See Hodges, supra note 9 at 453-454, "[t]he goal of the program is to train a select number of professional mediators nationwide about Title III of the ADA, refer Title III cases to these mediators for mediation, monitor the outcome of mediation efforts, and evaluate and disseminate the evaluation of the project to mediators and other interested parties nationwide, so that the project can be effectively replicated in other areas of the country."

[15] This mediation program, known as the Civil Appeals Management Plan ("CAMP"), is now used throughout the Federal Circuits Courts of Appeal.

[16] Civil rights mediation programs across the United States handle ADA and other disability-related mediation, including the Indiana Human Rights Commission, Ohio Civil Rights Commission, Hawaii Civil Rights Commission and the Massachusetts Commission Against Discrimination.

[17] The Institute was founded in 1996 as a cooperative program of the University of Louisville Labor-Management Center and the Access Center Partnership.

[18] KeyBridge Foundation ADA Mediation News, Fall 1998.

[19] See Settlement Agreement under the Americans with Disabilities Act between the United States of America and Bass Hotels & Resorts, Inc. regarding access.

[20] See Draft ADA Mediation Standards available at http://www.mediate.com/tan/1198/adrada.cfm (last visited April 22, 2001). The draft divided the issues into four main topics: Program and Case Administration, Mediation Process, Mediator Training, and Ethics.

[21] ADR Community Summit "The Status of Standards and Qualifications for Mediators" at the 9th NYS Conference on Dispute Resolution, NYSDRA (New York State Dispute Resolution Association), 9/24/98, Albany, NY; Industrial Relations Research Association (IRRA) 51st Annual Meeting, Dispute Resolution Section meeting, NY, NY 1/5/99; program on ADA Accommodations for Parties in a Mediation, NJ Society of Professionals in Dispute Resolution (SPIDR), Rider University, Lawrence, NJ, 11/17/99; regular meeting of the Dispute Resolution Coalition on Aging and Disability, Washington, DC, 3/10/99; "Resolving Workplace Disputes Under the ADA," American Bar Association Section of Dispute Resolution first annual conference "Breaking Down the Barriers: ADR in the New Millennium,"4/30/99, Boston, MA; "Using Mediation to Resolve Disability-Related Disputes," Perspectives Conference on Employment of Persons with Disabilities, sponsored by U.S. Departments of Agriculture, Defense, Health and Human Services, Labor, State, Veterans Affairs, National Institutes of Health and the President's Committee on Employment of People with Disabilities,12/9/98, Bethesda, MD.

[22] "Final Deadline Approaches for ADA Draft Standards," Alternatives to the High Cost of Litigation, 11/98; "Highlights of the Interim ADA Mediation Standards," The Journal of Alternative Dispute Resolution in Employment, Fall 1999; "Using Mediation in Disability-Related Disputes," New York Law Journal, May 10, 1999; "Work Group Issues Draft ADA Mediation Guidelines," Employment in the Mainstream, Fall 1998; Federal Human Resources Week, Volume 5, Issue 23, September 28, 1998.

[23] See Interim ADA Mediation Standards available at http://www.mediate.com/articles/adaltr.cfm?plain=.hmtl (last visited April 22, 2001).

[24] See ABA Model Rules on Professional Conduct available at http://www.abanet.org/cpr (last visited April 22, 2001).

[25] See ABA Commission on Legal Problems of the Elderly available at http://www.abanet.org/elderly (last visited April 22, 2001).

[26] See Cardozo Online Journal of Conflict Resolution available at http://www.cardozo.yu.edu/cojcr (last visited April 22, 2001).

[27] The Guidelines have been visited by more than 4,000 persons at the COJCR and mediate.com sites combined.

[28] Now known as Verizon Foundation, available at http://foundation.verizon.com (last visited April 22, 2001).

[29] See ADA Mediation Forum available at http://webboard.mediate.com/~ada (last visited April 22, 2001).

[30] Approximately 3700 booklets were requested in the first month of publication alone and distributed to a wide range of entities, including: mediation, ombuds, special education, bar association, court management, labor, management and related types of conferences and organizations. 970 were requested by federal agencies, with most requests originating from ADR programs, human resource and civil rights offices. 785 were distributed to court dispute resolution and to community mediation programs. (For example, copies were distributed by the Michigan State ADR Office to each community mediation center, at six judges' training sessions designed to familiarize them with ADR processes, and to all 25 Community Dispute Resolution Program centers and special education mediators.) Disability groups and conferences requested 560 booklets; 437 to mediation training programs; and 367 to higher education programs, primarily to law schools and conflict resolution programs.

[31] Volume 4, Number 9, April 26, 2000

[32] Volume 11, Number 7, July 2000

[33] October-December 2000

[34] See Paul Steven Miller, A Just Alternative or Just an Alternative? Mediation and the ADA, 62 OHIO ST. L.J. 11 (2001).

[35] 42 U.S.C. §§12181-12189.

[36] National Council on Disability, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act, June 2000 Report.

[37] For information about this listserv, write to Collaborate@mail.abanet.org.

[38] Erica F. Wood, Dispute Resolution and Dementia: Seeking Solutions, 35 Ga L. Rev. 785 (2001).

[39] Ms. Moidel was selected by the Department of the Navy's ADR Counsel, Carol Houk, to attend a two and a half day ADA Mediator training, sponsored by the CUNY Dispute Resolution Consortium Workplace Conflict Management Training Program in 1999.

[40] Bruce E. Meyerson, New Guidelines for Mediation of ADA Claims, ADR Currents, American Arbitration Association, June-August 2000.

[41] Ellen Waldman, The ADA Mediation Guidelines: Providing Direction in an Emerging Field, Mental and Physical Disability Law Reporter, ABA Commission on Mental & Physical Disability Law, May/June 2000.

[42] Karen Mosher, PhD is the Clinical Director for Adult Services at Kennebec Valley Mental Health Center in Maine. See http://www.kvmhc.org/ (last visited April 22, 2001).

[43] Held on Nov. 30, 2000 in Washington, D.C. See http://www.directionservice.org/cadre/ (last visited April 22, 2001).

[44] More information on the session can be found at http://www.specialednews.com.html/ (last visited April 22, 2001).

[45] See National Council on Disability supra note 36.

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

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