ADA Mediation Articles
This paper discusses the emphasis of Alternate Dispute Resolution in the field of ADA and Disability Discrimination and then provides a more detailed review of recent Title I and Title III cases.
This article is to give an over view of the use of disability mediation and a case study. The article will highlight some of the benefits of utilizing specialist mediators, confidentiality and why disability mediation works.
A mediator came to me for a consult with an intriguing situation while co-mediating a Harassment Prevention case in a local court. I analyze the situation in this article.
(5/07/07)William D. Goren
What is a reasonable accomodation in the employment context? Under the ADA, reasonable accommodation is defined in the negative. More specifically, a reasonable accommodation is anything that does not constitute an undue hardship. Thus, it becomes imperative to know what an undue hardship is.
The publication of “Workplace Disability Conflict Management Best Practices” below brings us full circle in a sense. Our focus has shifted from ADA mediation as a specialized field of practice to its current integration as “ADA conflict management practices” into standard operating procedure at many organizations.
(3/04/06) U.S. EEOC, National Council on Disability & U.S. Department of Justice
This guide helps
individuals with disabilities and their representatives understand
their rights and responsibilities when mediating equal employment
opportunity (EEO) disputes.
(8/10/05)EEOC National Mediation Program
The new video 10 Reasons to Mediate introduces businesses to the Equal
Employment Opportunity Commission's (EEOC) National Mediation Program.
(7/08/03)Association of the Bar of NY , Committee on Legal Issues Affecting People with Disabilities
The recommended revision of the Model Standards of Conduct, submitted by the ADR Committee and the Committee on Legal Issues Affecting People with Disabilities of the Association of the Bar of the City of New York, addresses the current bias that mediation capacity has a primary impact on people with disabilities. The recommendation points out that when capacity issues arise, whether disability-related or not, the mediator has an ethical obligation to explore the issues with the party.
This article examines the broader issues of party capacity or the ability for participants to be effective in their own mediation process. And, in order for the mediation process to have some evidence of success, great value should be placed on the pre-session planning process. In doing so, conveners can explore with disputants and guide them on how they might be the most effective participant.
Ellen Waldman wrestles with the difficult question of mediator responsibility when a surrogate is charged with representing a disputant’s interests, but appears to be pursuing a different agenda.
(7/08/03) Erica Wood
Since we want people to mediate their disputes, mediators should begin by assuming capacity and should be loathe to exclude a party based on lack of capacity – should set the bar low. Yet mediators also must ensure that if a conflict is mediated a party in fact can understand the process and abide by the outcome.
The issue of party capacity to mediate comes up with some frequency in the context of disputes involving one or more parties with a disability. Although capacity is an issue that applies to parties who are not people with disabilities, parties with disabilities more often may be judged unfairly as lacking in capacity.
Mediators need to be concerned when parties face obstacles to self-determination, a core value in mediation. When a party appears to have difficulty comprehending the mediation process, or seems unable to participate actively, the mediator needs to step back and explore those obstacles with the party. As mediation has moved into the legal arena, where parties are normally represented by counsel, the mediator may be less concerned about the party’s self-determination and informed decision-making.
To exercise self-determination, disputants must possess the capability to participate effectively in the process, a topic of recent inquiry. This article will examine a few implications of self-determination for mediation practice.
If confidentially is the heart of mediation, self-determination is its soul. The success of any mediation depends on the parties’ self-determination – that is, their ability to make voluntary, uncoerced, informed decisions. From that perspective, it is disturbing that mediators so frequently find ourselves engaged with parties who seem unprepared to mediate effectively.
(3/25/03)Judith Cohen, Patricia Porter
A multitude of conflict situations from interpersonal disputes to work performance issues, EEO complaints and grievances abound in the workplace. Misperceptions, lack of knowledge, miscommunication, and attitudes surrounding employees with disabilities are also potential sources of workplace conflict and may compound the other typical conflict areas.
When faced with the impact of disability in the workplace, both the employee and employer often lack appropriate information about the interactive reasonable accommodation process, their rights and responsibilities under the law, and the disability itself.
The three-year process of developing the ADA Mediation Guidelines, housed at the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, saw a tremendous collaboration with mediators, stakeholders and advocates. As the Work Group intended, the collaborative process that created the Guidelines has continued in the intervening years. This article addresses some of the resulting developments, the most significant of which have been in the areas of accommodation and mediation capacity, and the author's observations and reflections.
(1/06/03) Annette Leonard, Deb Duren, & John Reiman
Historically, mediation has not been an effective venue for
dispute resolution for Deaf people because of linguistic
inaccessibility and cultural non-recognition. Like other
linguistic minority groups who experience and resolve conflict
in a manner consistent with their social and communicative
norms Deaf people have some unique perspectives. The following
article illuminates some of these perspectives and explains
how mediators can address these differences when working with
Deaf people, in order to make mediation a more linguistically
and culturally respectful and responsive endeavor.
While many mediation providers have incorporated the ADA Mediation Guidelines into their practice, there remain gaps in practice areas. This editorial addresses two major areas that need work. 1) To a large extent, codes of conduct still do not reflect current disability rights and obligations in the mediation context. 2) Organizational providers, by and large, have not implemented effective procedures for accommodating mediation participants who have disabilities.
The ADA Mediation Guidelines: A Community Collaboration Moves the Field Forward describes the various issues such as accessible process and informed consent faced by a group of twelve mediators and how they resolved these issues. This group, known as the ADA Mediation Guidelines Work Group, evolved from informal discussions regarding the lack of standards in ADA mediation and the need to address the quality of the process. The article closes with a view at the impact of the Guidelines on the field and future issues to consider.
(8/27/01) President George Bush
Whenever possible, the Department
of Justice and the Department of Health and Human
Services should work cooperatively with States to
resolve these complaints, and should use alternative
dispute resolution to bring these complaints to a quick
and constructive resolution.
(7/30/01)Paul Steven Miller
Certainly litigation in federal court is a critical component to implementing
this vital civil rights statute, and mediation is not appropriate for every kind
of disability employment rights case. However, mediation is not second-class
justice either, and in many instances, with procedural safeguards to ensure
fairness, mediation can provide better justice than a lawsuit.
This summer's ADA Mediation Page offerings show us - through old and new writings -- how dramatically the field has evolved since the EEOC pilot project in 1991 and even in the few years since the ADA Mediation Guidelines were first proposed and discussed in the mediation and advocacy communities several years ago.
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One approach which will be useful in meeting the parties' obligation to engage in a meaningful interactive process in some sensitive reasonable accommodation situations is to employ a neutral to facilitate the process. Although similar to the rather more common variety of mediations in employment disputes, facilitation entails some differences of format.