When the idea of writing a piece on the ADA (Americans With Disabilities Act) and ADR (Alternative Dispute Resolution) for advocates was first broached to me, I must admit I had some trepidation. After all, while I know how I as a mediator or arbitrator would view the actions, or is it antics, of counsel, this piece demanded that I view ADR in the context of the Americans With Disabilities Act from the advocates perspective. At first, I confess I was stuck. Fortunately, I was able to draw on the counsel of two good friends of mine, who also happen to be nationally and even internationally renown practitioners of ADR- Bill Schroder of Schroder partners in Atlanta, GA and Jeffrey Krivis of First Mediation Inc. in Encino, CA. Thus, this piece is the result of trying to address their concerns. Finally, this article does assume that the reader has some familiarity with the concepts underlying the ADA.
The Americans With Disabilities Act (ADA) and Alternative Dispute Resolution are two concepts that mesh extremely well. Even the ADA itself, contains language in it encouraging dispute resolution. In fact, the EEOC is instituting ADR programs all over the country to clear it's backlog of cases, including those pertaining to the ADA. What this article will cover is: what type of mediator do you want to have hear an ADA case, how do you evaluate the mediator and how might a mediator/arbitrator handle an ADA mediation/arbitration, how should you prepare for an ADA mediation or arbitration, and should your ADA case be mediated or arbitrated.
What type of mediator do you want to handle an ADA case, facilitative or evaluative? Substantive expertise or not? With regards to facilitative or evaluative, we first need to discuss what is meant by the two. On Counsel Connect, a world-wide computer network for attorneys, there are several excellent forums devoted to ADR, including the CA ADR forum moderated by Jeff Krivis and the GA ADR forum moderated by Bill Schroder. In the GA ADR forum, Bill Schroder and other distinguished ADR practitioners discussed the two types of mediators. A facilitative mediator is a mediator that lets the two parties reach their own conclusions through the mediation process. An evaluative mediator is a mediator that makes it clear which way he or she believes the case is likely to go. That in turn, helps the parties come to their own conclusions through the mediation process. With respect to the ADA, it is my opinion that, in general, a facilitative mediator with substantial substantive expertise in the ADA is the proper choice for several reasons.
First, the ADA is an extraordinarily complex law that is exceedingly broad in it's scope. It covers just about any area of law you care to think of.
Second, the ADA is full of gray areas and elastic principles. In fact, the value of the ADA lies in it's elasticity.
Third, court decisions are frequently inconsistent and sometimes it is hard to divine their reasoning. Thus, any evaluation of an ADA matter by a mediator is not likely to carry the same amount of weight as seen in more settled areas of the law. For example, a person is diabetic and needs insulin shots. Does that person have a disability? Well, one court has said no. Such a decision does not fit with the EEOC guidelines nor is it, in my opinion, a correct decision, because such a decision ignores how persons with disabilities compensate for their disability. Thus, if you are a mediator and you are presented with a diabetic on medicine with one of the issues being does he have a disability, an evaluative approach is meaningless: i.e. the best you can say is that one court has held that no disability exists but that the court's conclusion has been called into question by commentators. There are many other areas of the ADA where a similar scenario would ensue.
Fourth, disability discrimination involves real feelings on both the plaintiff and on the defense side. The plaintiff is likely to be considerably upset that his rights and feelings as a human being with a disability have been ignored or taken advantage of. The defense is likely to be exasperated and confused, particularly where they have tried many different accommodations and a lawsuit still resulted. An evaluative mediator in such a situation would only harden positions and miss the point entirely. The ADA is about what it means to the individual with a disability to have a disability and how that person needs to get to the same starting line as persons without disabilities. On the defense side, the ADA is about accommodating the employee while simultaneously not fundamentally altering the business operations. All of these engender quite a bit of feelings when expressed and are hard to "evaluate."
This is not to say, that substantive knowledge is not important for a mediator doing ADA work: It is absolutely critical. For example, I have seen many courts overemphasize the issue of working as a disability even where the disability can be described in terms of a major life activity other than working. A mediator not familiar with the ADA could well accept a defendant's notion of working being the preeminent concern in assessing a disability. While such a belief would be based on some court decisions, nevertheless that belief would be erroneous upon a plain reading of the ADA's implementing regulations. See, 29 CFR 1630.2(i). Also, a command of the case law and the statutes and regulations involving the ADA are likely to be of great help in the portion of the mediation where the paradigms of each of the parties are tested.
In evaluating the mediator you certainly want to keep in mind the facilitative versus evaluative distinction mentioned above. However, you also want to evaluate the process itself. Did it get you to win-win? To see how the process of an ADA mediation might work, let's take the following hypothetical. A person suffers from repetitive stress syndrome as the result of too much computer keyboard use. The person is a manager of his department and shares clerical support with several others. He must currently type all his memorandums. He mentions the problem to his boss and the boss says the money isn't there in his department: "suck it up". He cannot do so and is eventually let go for not being able to do the job. He has brought suit after receiving his right to sue letter from the EEOC. The judge has sent it to mediation. What arguments do you use if you are a plaintiff trying to put your best case forward and resolve the matter to your client's satisfaction. In this case, the plaintiff is likely to argue: First, repetitive stress syndrome is a disability as defined by the ADA. Second, typing memorandums is not an essential function of his job. Third, even if typing memorandums is an essential function of his job, it can be done with reasonable accommodations, ranging from a secretary to a Kurzwell system. Fourth, the company, a multimillion dollar company, has the money to accommodate him.
On the defense side, the mediator is likely to hear first that repetitive stress syndrome is not a disability. Second, the disability, if it is indeed one, does not limit his ability to work. Third, typing memorandums is an essential function of the job and the money in the department isn't there. Are any of these arguments likely to succeed? What will be the solution to the problem? With respect to the arguments succeeding, this particular scenario involves a mediation and so success is a relative term. The arguments will be tested in the private caucus. As for solutions, the mediator must use his talents via the mediation process to help the parties reach a solution of their own making that they both win with.
The mediation process and the testing of the parties paradigms in this case leads to the following questions in this case: How committed is the plaintiff to the company? Perhaps, he really enjoyed working there and would like to do so in the future. Just how clear did the plaintiff make it to his superiors that he could not type? Did he actually tell them of his inability to type or did he just assume they would know? This is where substantive knowledge of the ADA becomes critical because the plaintiff has much a stronger case in the former instance than in the latter. How much time does he spend typing during the course of his job? How does the plaintiff feel about having repetitive stress syndrome. How does it limit his life activities? Are any of those activities major life activities? How is he coping? What ideas does he have for ensuring that memos can be completed without aggravating his disability? This is an extremely significant question because so often the person with a disability has great ideas about what he needs to get the job done if only someone would ask. Does the plaintiff understand that the ADA does not entitle the plaintiff to whatever accommodation he desires but only whatever accommodation gets him to the same starting line as the non-disabled worker through negotiation with the employer? Finally, what is the substantial limitation on a major life activity being complained of? If it's working, the mediator is going to have to tell the plaintiff that he faces an uphill fight in succeeding on his ADA claim.
On the defendant's side, questions to consider are: What is the defendant's understanding of the ADA or lack thereof? How frustrated is he in dealing with the ADA? What other dealings has he had with the ADA? How big is his company? What is their understanding of what it means to reasonably accommodate someone? Does the company have a disability discrimination policy? If so, was it carried out in this case? How much of the plaintiff's job was devoted to typing? What is their understanding of when the ADA permits financial costs to be a defense to a reasonable accommodation request? What is their understanding of how the ADA mandates they should handle a reasonable accommodation request? Do they realize that reasonable accommodation for a particular plaintiff is a matter of getting to the same starting line as the non-disabled employee and is a product of negotiation? How did the plaintiff make clear that he couldn't type his memos? How flexible is the company in discussing reasonable accommodation ideas? Is the company against bringing this employee back? After all this, the paradigms of both parties has to be tested. Assuming this is not a situation where the applicable court unduly emphasizes working as the disability or the plaintiff's attorney has not made the mistake of alleging working as the disability, the defendant would have to be told that they may seriously want to reconsider their options. Assuming a disability can be found, they are going to be hard pressed to argue that an undue hardship will occur by accommodating the plaintiff. The mediator will have to explain just what is undue hardship and how it very much differs from "inconvenience." Further, undue hardship is a matter of looking to the entire resources of the company and not just the department. 29 CFR 1630.2(p)(iii). Finally, it may be possible that the disability discrimination policy is problematic as well. After all this, it should become pretty clear to the defense that settling this particular case would be in their best interests.
In short, successful mediation in the ADA depends on the plaintiff side being
able to project the meaning of what it means to having a disability and the
dedication to succeed so long as he or she can be put on the same starting line as
On the defense side, flexibility is critical. The ADA is very elastic and having a hard
position is not likely to be productive. Critical to the success of an ADA mediation,
is a mediator with substantive knowledge of the law otherwise poor results will ensue
or people will adjust their thinking based on false legal premises: thereby making
everybody unhappy in the long term. The mediator must also be one that is capable
of empathizing with both the plaintiff and the defendant while not taking sides, and
one that is capable of educating both sides as to what the ADA is and
How do you prepare for an ADA mediation? I suggest several steps. First, know the applicable law. Second, recognize that the ADA is very elastic and so be flexible in your thinking. Third, know your mediator. Is the mediator one with "knock down" knowledge in the ADA or are you going to have to educate the mediator? If the former, be prepared to find out the unexpected about the ADA and if the latter be prepared for things to get confusing. Fourth, know the facts of the case well as the ADA is fact intensive. Fifth, prepare the client that mediation is non-binding but he may find his concerns very well addressed by the end of the process. Know the client's goals. Be prepared to allow the client to go one on one with the mediator outside of your presence? The most critical piece for preparing for an ADA mediation is for you and your client to keep an open mind about what the ADA may or may not require and to be flexible about how the situation can be resolved. This is true for any mediation but it is particularly critical for the ADA, which is inherently elastic and individually based.
What about preparing for an ADA arbitration? In many ways, the steps are similar. First, know your facts inside and out, including any expert opinions. Second, know the law. Third, know your arbitrator. For example, can you get away with trying a novel or suspect approach to the issue or will the arbitrator let you have it "between the eyes", if such an approach is tried. For example, I wouldn't be very receptive to an argument that disabilities under the ADA must always be evaluated in terms of working. While there are some courts that have said as much, that is, in my opinion, a misreading of the law. On the other hand, if an interpretation of the ADA is a reasonable one, I would consider it even if it is a novel approach. Fourth, make sure that your case is argued appropriately. That is, depending on the side you are on, certain arguments are almost certain losers. For example, working as a disability rarely works for a plaintiff and in any event should not be necessary because the plaintiff's attorney should be able to find some other impairment that substantially limits a major life activity. Fifth, is your case at a posture where arbitration is going to be worthwhile? If there are relevant facts to be discovered, arbitration is not a good option as the ADA is so fact specific.
While both mediation and arbitration are categories of alternative dispute resolution, they are in truth very different from each other. Mediation is someone leading a process so that parties can reach creative win win solutions. Whose right and whose wrong is not really the issue: the focus is on reaching an understanding agreed to by the parties based on shared interests. Whereas, in arbitration an adversarial process is involved and one side really does win. The arbitrator is much like a judge in deciding the matter before him or her.
As mentioned above, the ADA is an extraordinarily broad and oftentimes complex law to deal with. The ADA reaches across all practice areas of the law from employment to real estate to insurance to governmental accessibility questions and more. Thus, of the many ADA cases that an advocate could have, the question is how does she decide which ADR method is the best for her client.
Certainly, one factor in deciding to mediate or arbitrate is strength of the case, but even strength of the case in the ADA arena can be deceptive as it is entirely possible that further analysis of an ADA case may reveal that the case is not as strong as either party believes it to be. Also, since ADA jurisprudence is so fluid, what is a strong case one day may be a weak case the next. Thus, in my opinion, the most important factor for choosing mediation or arbitration is what issue of the ADA is at stake. While the ADA is very fact specific, some ADA issues are better off mediated than arbitrated and vice versa.
Understanding this conclusion necessitates exploring the ADA in a bit more detail, though a complete exploration of the ADA is saved for another time in another setting.
Determining whether a person has a disability that is protected under the ADA is an issue better left for mediation and not arbitration because of the very nature of the definition. The ADA defines a disability as: 1) a person who has a physical or mental impairment that substantially limits one or more of life's major activity; 2) has a record of such an impairment; or 3) is perceived as having such an impairment. 42 U.S.C. 12102(2). The definition of disability is full of elastic concepts (such as what is a physical or mental impairment?; what does it mean to substantially limit a major life's activity?; what is a major life activity? what does it mean to perceive a person as having a disability?), that mediation, where all ideas and facts can be freely explored and discussed, is the better option.
While the definition of disability is elastic, it's elasticity pales in comparison to the concept of what it means to be otherwise qualified. In order for a person to be protected under the ADA, he must have a disability but he also must be otherwise qualified. That is, in the employment context for example, the person must meet the eligibility requirements of the job and must be capable of performing the essential functions of the job with or without reasonable accommodations. See, 42 U.S.C. 12111(8); 29 CFR 1630.2(m). Perfect discussions for the mediation process include: What are the job's eligibility requirements, i.e. do they make sense?; What are the essential functions of the job and do they accurately portray the persons job?; How did the employer determine the essential functions of the particular job?; What reasonable accommodations are available and what have been tried to date? All of these questions are more easily discussed in the context of a mediation than in an arbitration.
Another issue that should be mediated and not arbitrated is the one of reasonable accommodation. That is, was the person with a disability reasonably accommodated by the employer. It is difficult for to imagine how this issue would be adequately resolved in an arbitration for several reasons. First, the reasonable accommodations that are possible is only limited by the parties imagination. Second, no two person deal with their disability in the same way, and the way they deal with their disability, both physically and emotionally, reflects the reasonable accommodation that works the best for them. Third, reasonable accommodation is a process of negotiation between the employer and the employee. Fourth, finding an "undue hardship", a term of art that allows a business to not have to make a reasonable accommodation, is extraordinarily difficult. Finally, a much better defense than undue hardship is the question of whether there is a fundamental alteration to the business's operations, an issue that is also ideal to explore and have the parties dialogue about in a mediation.
The last issue that we will discuss as being ideal for mediation occurs in the governmental accessibility context. Title II of the ADA applies to governmental entities regardless of size. See, 28 CFR 35.104. Under title II of the ADA, each facility, providing the facility is not built after the advent of the ADA, of the governmental entity does not have to be accessible, rather only the program has to be accessible. 28 CFR 35.150(a), (a)(1). Unfortunately, a program can have so many different meanings and thus, exploring those possibilities in a mediation environment makes the most sense.
Not every ADA issue that arises is one you would rather mediate. There are certain issues are better off arbitrated. Let's explore some of those. Previously, we mentioned that in order to be protected under the ADA, a person must have a disability and be otherwise qualified. However, a person can be otherwise qualified and still not be protected by the ADA where the person is a direct threat to himself or to others. 29 CFR 1630.15(2). Since, "direct threat", must be measured against objective and scientific evidence about a person's condition, this issue has no place in mediation and belongs in arbitration. Any mediation is likely to get too personal and not come up with relevant information. A person either is or is not a direct threat based on the scientific evidence of the person's medical condition (i.e. disability), the person's particular job and, in certain cases, the case law. Thus, an objective decision is warranted and an arbitrator is an ideal one for that.
The issue of preemployment medical inquiries and exams is also an issue ideal for arbitration. The ADA prohibits preeemployment medical inquiries and medical exams prior to a conditional job offer being made. 42 U.S.C. 12112(d)(2)(A); 29 CFR 1630.13. A preemployment medical inquiry or exam either occurs or does not occur (though, that is not to say the arbitrator's decision will be so simple: It can be a complex task to determine whether a preemployment medical inquiry or exam has occurred, particularly where an essential function of the job is involved (See, 42 U.S.C. 12112(d)(2)(B)), and is an objective decision that can be made by an arbitrator. Even though this is an objective decision that can be made by an arbitrator, the plaintiff must do some education of the arbitrator here. The fact is with preemployment medical inquiries, that so much of deciding whether such an inquiry is involved is going to depend on whether a person with a disability would have reasonably perceived a question was asked that was likely to elicit disability related information. Thus, the plaintiff is going to want to talk about how his client reacted upon hearing or seeing that question and whether such a reaction was a reasonable one.
Yet another issue perfect for arbitration is the issue of the ADA and health insurance. The ADA prohibits discrimination against persons with disabilities in the benefits and privileges of employment. 42 U.S.C. 12112(a). One of the benefits of employment is insurance. If an employer has disability based distinctions in their insurance coverage, they will be hard pressed to prove that the distinctions are not a subterfuge for disability discrimination. See generally, EEOC Guidance on the ADA and Health Insurance. It is hard to see how this issue belongs in mediation at all as the decision in such a case turns on objective facts, analysis of appropriate regulations and applicable case law.
One area of the ADA that it is simply very difficult to determine whether you are better off mediation or arbitrating is in the area of places of public accommodations (Title III of the ADA). The ADA prohibits discrimination in places of public accommodations. 42 U.S.C. 12182(a). An existing place of public accommodation built after the advent of the ADA must make whatever structural modifications it can that are readily achievable. 42 U.S.C. 12182(b)(2)(A)(iv). However, where an auxiliary service is involved, the public accommodation must make whatever modifications necessary short of an undue burden. 42 U.S.C. 12182(b)(2)(A)(iii). Thus, there are several issues that commonly arise under this title. First, what is a place of public accommodation? A place of public accommodation is anyone of twelve different categories. 42 U.S.C. 12181(7). Whether a place of business falls into one of those categories is an issue that can either be mediated or arbitrated. The second issue is the issue of readily achievable? This is an issue that may be better off being mediated as an awful lot of educating by the mediator about what "readily achievable" is, is likely to be necessary. The final issue is the one pertaining to the standard of undue burden for providing auxiliary services. I can see this issue arbitrated or mediated. If a place of business just refused to accommodate a person with a disability with an auxiliary aid, the attorney may want to go for the slam dunk against a defendant through an arbitration. On the other hand, this is an issue where both sides could stand to learn a great deal about where the other party is coming from and what the ADA actually does require and thus, mediation would preferred.
It is my hope that this article has served the dual purpose of explaining how the advocate may want to deal with the ADA in an ADR setting and how the mediator/arbitrator may attack the ADA in the ADR context. I expect to see an much greater use of ADR in the ADA because the ADA is such an ideal fit with ADR.
See, Goren, William D., An Ideal Fit: ADA and Preventive Law, Preventive Law Reporter, Winter 1995, pp.19-20,31