The ADA is the first civil rights law to affirmatively promote mediation to resolve disputes under its provisions. But mediation of ADA cases poses special challenges to mediators for two reasons. One is the somewhat "arcane" set of laws applicable to ADA claims. The other is that the disabled employee may have an impairment that interferes with his or her ability to make informed choices regarding the resolution of the ADA dispute.
To assist in the mediation of ADA cases, a working group of practicing mediators, attorneys, program administrators and trainers has created, under the auspices of the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, ADA Mediation Guidelines designed to address "issues that are unique to resolving disability-related disputes."
The guidelines address issues in the following categories: program and case administration, process, training and ethics. Their goals are twofold: (1) to "provide direction for mediators, administrators, funders and consumers of ADA mediation," and (2) provide direction "for disability access in any type of mediation involving persons with disabilities."
The guidelines are voluntary and "are available to be followed voluntarily by individual mediators and mediation provider organizations who wish to signal to potential parties and mediation participants their familiarity with disability issues and their commitment to high quality ADA mediation services." The ADA Mediation Guidelines are required reading for anyone involved in an ADA mediation as a mediator or as counsel. This article, however, comments only on certain responsibilities that the guidelines place on the mediator.
ADA cases raise significant responsibilities for mediators when concerns arise over a party's capacity to participate in the mediation and to enter into a knowing and voluntary settlement agreement. The guidelines call for the mediator and the provider organization to determine whether the parties have the capacity "to understand the process and the options under discussion and to give voluntary and informed consent to any agreement reached."
Should this determination be made in every case or only when capacity seems to be in issue? The intent of the guidelines seems to be only in the latter case. The guidelines call for the capacity determination to be made "on a case-by-case basis, if and when a question arises regarding a party's capacity to engage in the mediation process and enter into a contract."
Determining capacity involves a number of factors. The guidelines provide that "the mediator should ascertain that a party understands the nature of the mediation process, who the parties are, the role of the mediator, the parties' relationship to the mediator, and the issues at hand." The guidelines also direct the mediator to determine whether the party can assess options and make and keep an agreement. In making this determination, the guidelines say that the mediator should not rely solely on the party's medical condition or diagnosis.
The guidelines describe capacity as a "decision-specific" concept. They emphasize that the capacity to make decisions in mediation is not the same as the ability to make other types of decisions, such as the decision to marry or vote. The guidelines also distinguish the capacity to mediate from legal capacity. Thus, a person determined to be legally incompetent may be able to participate in a mediation, while a person who has not been adjudicated incompetent may not.
In the case of a party who "appears to have diminished capacity" or whose capacity to mediate is unclear, the guidelines call for the mediator or provider organization to make three types of determinations: (1) whether a disability is interfering with the party's capacity to mediate, (2) whether "an accommodation" can be offered that will enable the party to participate effectively in the mediation, and (3) whether the party can mediate with "support" (i.e., a helper who may be a representative, an attorney or another person).
The guidelines provide as a last resort for a surrogate who is authorized under law to act for a party who lacks capacity to mediate "even with support." The mediator is urged not to proceed with the mediation in this situation in the absence of a surrogate.
The mediator's responsibilities under the guidelines to evaluate the capacity of the parties to mediate may seem a bit daunting. It may be questioned whether the mediator is qualified to determine a party's capacity altogether. Mediators generally are not behavioral health professionals and thus may lack the skills to make an informed decision. When bona fide questions arise about a party's capacity that are beyond the mediator's ability to decide, the mediator might consider adjourning the mediation to allow health professionals and others with appropriate backgrounds to contribute to the dialogue.
Whether or not the mediator makes the capacity determination alone, how should the mediator acquire the information needed to make the determination? While the guidelines do not give specific advice on this point (except for stating that the determination should not be based solely on medical information), they presumably intend for the mediator to make inquiries of the party whose capacity is questioned in order to reasonably determine whether he or she is able to understand the mediation process and the consequences of entering into a settlement agreement. The guidelines do not comment on whether it would be appropriate to review employment or other records or to inquire of others in making this determination.
There are no easy answers to capacity-related issues but the guidelines provide direction and raise the sensitivity of mediators to these troublesome issues.
To help prepare the parties for the mediation, the guidelines urge the mediator and the provider organization to encourage the parties to become aware of their legal rights and responsibilities under the ADA prior to the mediation session. Mediators can fulfill the directive to encourage the parties to find out about their statutory rights by so advising them during any pre-mediation conference calls with the parties.
The guidelines laudably provide that both before and at the outset of the mediation session, parties should be advised that they may obtain independent representation. They also should be advised of the risks of not being represented and of not having a settlement agreement reviewed by counsel. It is good practice for mediators to inform unrepresented parties about their right to obtain counsel and the prudence of having counsel review any agreement that is intended to be legally binding.
The guidelines wisely do not urge mediators to adopt any particular style of mediation, avoiding the less than useful debate over facilitative and evaluative mediation.
In cases involving the issue of reasonable accommodation, the guidelines describe the joint session as "an opportunity for the parties to engage in the 'interactive process' to identify and evaluate accommodation alternatives." They contemplate that the joint session could be used for negotiation and design of disability accommodations.
A mediator who lacks sufficient knowledge of the disability may, with the permission of the parties, invite a neutral expert to educate the mediator and the parties about the disability and assist in developing options. Presumably, however, inviting an expert could require the mediation to be adjourned until an appropriate, available expert is located.
Mediator competency is addressed under the subject of ethics. These guidelines call for the mediator to have "knowledge of disabilities, disability access and disability law." This includes having an awareness of general ADA case law and guidance issued by regulatory agencies.
The guidelines require a mediator who lacks the requisite "background information" to "acquire legal or disability-related information in order to have sufficient knowledge to mediate the case competently." Mediators are urged not to take cases for which they are not qualified.
The position taken in the guidelines seems to end the debate, at least in the ADA area, over whether mediators should have process or substantive skills. The guidelines quite properly come down squarely on the side of having both types of skills. With the growth of mediation, it is easy to find mediators who bring to the table both process skills and knowledge of the subject matter.
Fair process is also treated as an ethical matter. To ensure fairness, the guidelines provide that "the mediator should encourage parties to seek information and advice from 'relevant' sources during the course of the mediation." (Emphasis added.) This may not be practical without an adjournment. In my experience mediating ADA and other employment cases, unless the mediation is adjourned, the parties have rarely gone outside the mediation for additional information. The mediator's common sense should guide the need to encourage parties to seek external assistance. This is presumably what the authors of the guidelines intended.
The guidelines rightly state that settlement agreements should never be coerced. They provide that agreements "should be based on a clear understanding of the issues, options and facts of the particular case." Toward this end, they urge the mediator to "make every effort to ascertain whether the parties have a sufficient understanding of [the parties'] rights and obligations under the ADA, and the implications of any (a) agreement that they reach, or (b) decision to reject an offer of settlement." 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.
If the parties are unrepresented but otherwise competent to enter into an agreement, how far must the mediator go in ascertaining that they understand the "issues, options and facts" of the case? The guidelines correctly provide that if the mediator finds that the parties do not understand the implications of the agreement, the mediator should encourage them to "consult appropriate sources of information and advice." The ethical guideline under the subheading Legal and Disability-Related Information calls for mediators to assess when unrepresented parties need legal or other counsel, or when the participation of an expert or resource person would be advisable. The guidelines allow the mediator "to encourage a party to consider obtaining such assistance when needed."
The guidelines tread carefully so as not to compromise the mediator's neutrality. Even while they recommend that the mediator encourage the parties to seek external assistance and legal counsel, they urge that such encouragement be given in a manner that "protects the process," such as by communicating this information in private caucus rather than in joint session.
Overall, the ADA Mediation Guidelines represent a thoughtful, comprehensive approach to difficult issues in ADA mediation. This laudable effort by the mediation community to find workable approaches is an important step for this evolving field. The guidelines provide helpful guidance that should lead to a higher quality process. They can be expected to provoke further thinking and discussion, which may produce both refinements and innovative ideas.
The guidelines may be obtained from the ABA Section of Dispute Resolution. They are available online.
The ABCs of the ADA
The ADA requires employers with 15 employees or more to "reasonably accommodate" disabled employees or job applicants, unless the accommodation imposes an "undue hardship" on the business. The obligation to offer a reasonable accommodation arises only if the following prerequisites are met.1 First, the employer must know of the physical or mental limitation. There is no affirmative duty to provide an accommodation for a condition that is unknown to the employer. Constructive knowledge of apparent conditions, however, is sufficient to put an employer on notice.
Second, the employee/applicant must be an "otherwise qualified individual with a disability," i.e., an individual who can perform the essential functions of the position.2 Third, the reasonable accommodation must not impose an undue hardship on the employer. An undue hardship means significant difficulty or expense, as indicated by any of the following: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility; (3) the number of persons employed by the facility; (4) the effect or impact on expenses, resources and operations of the facility; or (5) the type of operation; the composition, structure and functions of the work force; the geographic separateness of business units; and the administrative or fiscal relationship of the facility to the covered employer's overall business.3 A reasonable accommodation may involve making existing facilities readily accessible and usable by individuals with disabilities. It may also involve job restructuring, a part-time or modified work schedule, reassignment to a vacant position, acquisition or modification of specific equipment or devices, appropriate adjustment or modification of job examinations, modification of training materials or policies, providing qualified readers or interpreters, or other actions by the employer.4 Because the ADA is relatively new, many courts have looked to cases under both the ADA and the Rehabilitation Act of 1973 to interpret reasonable accommodation requirements. Whether an employer has made a reasonable accommodation generally is determined on a case-by-case basis.
It is unlawful for an employer to inquire about an employee's disability, but it can find out about the need to provide a reasonable accommodation by adopting a policy requiring employees to notify the employer of physical limitations on their ability to perform their jobs and of any accommodations needed to enable them to perform their jobs. Placing this notification obligation on the employee reduces the risk that an employee will later allege in a lawsuit that the employer failed to make reasonable accommodations that were never requested and the disability never made known to the employer.-BEM