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<xTITLE>Creating Accessible Mediation</xTITLE>

Creating Accessible Mediation

by Heather Kennedy
October 2020 Heather Kennedy

Individuals with disabilities should have access to tools to settle all types of conflicts including discrimination issues. Mediation is a tool that is useful and practical for all members of society including this population. The Disability community makes up an estimated 25% of Americans, therefore mediation centers and mediators should have practices, policies and procedures in place to serve this population. This paper summarizes legal and ethical reasons for accessible meditations and provides a summary of how to accomplish this goal.


 

Introduction

Individuals with disabilities have continuously and systematically been discriminated against and excluded within American society (Northwest ADA Center, n.d.) (Cornel Law School, n.d.). The American Disability Act (ADA) and other anti-disability discrimination laws lay out protections and guidelines for this population to ensure equal access and the ability to participate in "all aspects of society," including government and consumer services (Cornel Law School, n.d.). These services include the field of alternative dispute resolution, such as mediation. ADA language and procedures encourages the use of mediation (ADA Mediation Standards Work Group, 2000) (Goren, 2014). Mediation is a tool that is useful and practical for every member of society, and those with disabilities should have access to these tools to settle all types of conflicts, including disability discrimination issues (Goren, 2014)(PACER.ORG, n.d.). Having policies, procedures, and practices that intentionally or unintentionally exclude this population is not only discriminatory but illegal. Mediation centers and mediators need to be prepared to make their services available to persons in the disability community. This population makes up an estimated 19% of the U.S. population (United States Census, 2012). The following is a summary of how to create and ensure accessible mediation centers and sessions. This guidance summary was built from the detailed Americans Disability Act (ADA) mediation guidelines and ethics, EEOC and DOJ Mediation questions and answers, and standards created by; Mediation Standards Work Group, Department of Justice, Equal Employment Opportunity Commission, and the ADA National Network. This guideline is not legal advice. Specific questions and interpretations of ADA and other anti-discrimination laws should be brought to attorneys or government organizations responsible for the creation and implementation of these laws and regulations (ADA Mediation Standards Work Group, 2000). This author advises that readers review these resources for themselves.

Mediation Centers and Mediators Should Be Accessible

According to the most recent U.S. Census completed in 2000, 19% of the population identifies as having a disability, which equates to 1 in 5 Americans (United States Census, 2012). The CDC estimates these numbers to currently be 64 million Americans, which is 1 in 4 people (Center for Disease Control, n.d.). Disability discrimination cases are on the rise, and this trend is projected to continue. In 2019 Title I ADA claims rose 33.4 percent from the previous year (JDSUPRA, 2020). From 2005 to 2017, Title II claims rose 196%, and Title I and III claims rose 521% (United States Courts, 2018). In 2019 Title III lawsuits had a record-breaking year (Vu, Launey & Ryan, 2020) These numbers emphasize the importance that those providing mediation services should be ready to serve this population. The law includes mediation centers and practitioners, who have responsibilities to ensure that mediation is accessible to persons with disabilities (ADA Mediation Standards WorkGroup, 2000). The specifics of these responsibilities can be located at the ADA National Network. ADA Title I covers internal employment mediation. ADA Title II is about state and local government programs and publicly funded entities such as non-profit government grants, court programs, and use of other public programs. ADA Title III explains how a business or service provider is considered a public accommodation and service establishment (ADA MSWG, 2000). Another applicable law for accessible mediations is in the 504 Rehab act. To see a full list of laws, please see A Guide to Disability Rights Laws (U.S. Department of Justice, 2020).

Accessibility is part of mediator ethical guidelines provide emphasis on disability accessibility standards and ethics. For example, the ADA Mediation Guidelines, Model Standards of Conduct for Mediators, and Practice Standards for ADA Mediators discuss disability accessibility standards and ethics (U.S. Equal Employment Opportunity Commission, 2015)(U.S. Equal Employment Opportunity Commission, n.d.).

An Overview on Ensuring Accessible Mediation

Understanding Definitions

It is also crucial for mediation providers to understand how disability as defined by ADA law. The ADA broadly defines a disability as having "a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment" (ADA National Network, 2013). To understand a more in-depth explanation of a qualifying disability, the EEOC 'The ADA: Questions & Answers' guide provides a more detailed explanation (U.S. Equal Employment Opportunity Commission, 2002).

Defining Accommodation and Modification

Public accommodation and reasonable modifications are done by private entities that operate for public use to assist those in the disability community to gain equal access and opportunity, as explained in ADA Title III (ADA National Network, 2013). Each section of the ADA requires accommodations and modifications. These can generally be defined as actions or changes that are reasonably accomplished to include a person with a disability (ADA.Gov, n.d.)(ADA National Network, 2013). ADA centers, the Equal Employment Opportunity Commission, and Disability rights organizations can provide further guidance and examples.

Education and Policy

Mediation centers and providers should acquire basic ADA accessibility education. This knowledge will help mediation providers create or modify policies and procedures on accessibility. These policies and procedures need to be made readily available to all participants and employees of mediation centers (ADA Mediation Standards Work Group, 2000). Procedures should include a non-discrimination policy, creating and updating available accommodations, resources to provide or fund accommodations, procedures to request or offer accommodations, and a grievance process (ADA Mediation Standards Work Group, 2000). Mediators and centers should be prepared to accommodate participants by reviewing physical accessibility barriers and having access to standard communication tools, audio, and visual aids (U.S. Equal Employment Opportunity Commission, 2015). This education can be easily acquired by contacting a local ADA Regional Center, which offers free brief and detailed online training, in-person training, and advisors that can answer any questions (ADA National Network, n.d.).

Accessibility Basics

There are some necessary essential steps and information that each center should understand and accomplish as part of their intake process, choosing a mediator, providing and understanding accommodations, cost, party capacity, auxiliary services, and confidentiality.

Intake

It is not legal to explicitly ask if a potential client has a disability. However, they can ensure ADA compliance and accessibility by outlining the mediation process during intake and inquiring about accommodations that might be needed (U.S. Equal Employment Opportunity Commission, 2015.) Mediators and intake personnel have a responsibility to assist parties in identifying needs to help them fully and effectively participate in the process. Places that provide public services such as mediation centers should take care to avoid any operation or intake procedure that may screen out individuals with disabilities. An example provided by the ADA includes only allowing a state license to be a form of identification to participate as this can screen out those who do not drive due to physical disabilities (ADA National Network, 2013).

Accommodation Requests

Some accommodations may take time to prepare, so seeking participant and party needs during intake is helpful. Finding an assistant, an accessible location, and acquiring appropriate assistive technology, are examples of accommodations that require some notice. In some circumstances, an intake may not be possible, or a need is not identified until the mediation starts. In this case, it may be necessary to stop the mediation or reschedule so the accommodation can be met (U.S. Equal Employment Opportunity Commission, 2015). A participant with a disability can also give notice of accommodation need orally or in writing. Mediators may be specific when asking questions about a request or need. While they should not ask what the specific disability is, they may inquire about specific needs if disclosed. Sometimes the participant will know what specific accommodation they will need, and other times brainstorming, and conversation will need to occur to help understand options (U.S. Equal Employment Opportunity Commission, 2015). It is important to note that a considered accommodation or modification should not impact a mediator's impartiality (U.S. Equal Employment Opportunity Commission, 2015). Unless required by law, a mediator does not have to provide a specifically requested accommodation as long as the accommodation utilized removes the barrier to mediation effectively (U.S. Equal Employment Opportunity Commission, 2015).

Choosing a mediator

Published ADA mediator guidelines and summaries encourage that centers that work on disability discrimination cases utilize mediators that, at minimum, have experience in these types of cases and some ADA training. Other guidelines suggest rigorous and consistent training. Please refer to the EEOC Questions and Answers for Mediation Providers and the ADA Mediation Guidelines for further guidance on this topic.

Cost

A person with a disability can not be charged for the cost of an accommodation or modification to access mediation services (U.S. Equal Employment Opportunity Commission, 2015). In the case of one or more entities involved in mediation, each is responsible for the cost; the expense should be coordinated and discussed in advance of mediation (U.S. Equal Employment Opportunity Commission, 2015). Mediation centers and mediators should anticipate occasional' readily achievable' accommodations and advised to budget for them accordingly (U.S. Equal Employment Opportunity Commission, 2015). A readily achievable accommodation is "easily accomplishable and able to be carried out without much difficulty or expense" (ADA National Network, 2013).

If an accommodation can be demonstrated to place an 'undue burden' or 'fundamentally alter' the nature of the service provided, then it may be denied (ADA National Network, 2013). However, a business or service should make a reasonable attempt to accommodate. Organizations should contact their resource list for possible low-cost options and to understand what is considered an "undue hardship" (U.S. Equal Employment Opportunity Commission, 2015) An ADA provided an example on a request for Braille materials for mediation, can be denied due to cost. However, the mediation center should explore and offer alternatives, such as someone reading a pamphlet or having an audio format readily accessible" (ADA National Network, 2013). For more information on "readily achievable," what is considered "fundamental alterations" and "undue burdens" see The Americans with Disabilities Act: Questions and Answers.

Party Capacity

While it is crucial for all parties to mediation be able to comprehend the process, discussion, and to give voluntary and informed consent, the determination of party capacity should never be made based on the assumption or declaration of a disability (ADA National Network, 2013)(ADA Mediation Standards Work Group, 2000). Decisions on party capacity should be made on a case by case basis utilizing a variety of factors. Legal capacity does not determine the capacity to mediate, although it may be necessary to have a co-signer depending on the agreement (ADA Mediation Standards Work Group, 2000).

If, after careful determination, the party appears to have diminished capacity, it is important to evaluate if an accommodation will help the party to participate fully. An accommodation can be additional mediator participants that include a representative who serves as an agent and advocate, a surrogate who makes legal decisions for the party, or a support person who can provide emotional and moral support (ADA Mediation Standards Work Group, 2000)(ADA National Network, 2013). Other possible participants are personal assistants who provide only physical or other aid and interpreters who facilitate communication for the hard of hearing. These persons' roles must be understood clearly to the mediator (ADA National Network, 2013).

If questions or concerns remain about party capacity and determination to proceed, advice from disability support providers such as local ADA centers may be helpful. Mediators have the right to decline or refer a case based on their mediation competency, experience, and ethical guidelines (Meyerson, 2001)(JAMS,n.d.). The intent of exploring party capacity in detail is to ensure that those with disabilities are not unfairly screened out of the mediation process.

An example of a party capacity accommodations is frequent breaks, ideas broken down into manageable steps, frequent summaries, use of a small office setting, and allowing extra time for the individual to respond(ADA Mediation Standards Work Group, 2000)(ADA National Network, 2013).

Auxiliary Services

ADA emphasizes the importance of effective communication and the ability to provide auxiliary aids to individuals who need or request them (ADA National Network, n.d.). Effective communication rules apply to all mediation participants. A mediator may inquire about referrals to providers of auxiliary services, and a resource list should be on hand to access these services if alternatives are needed. (U.S. Equal Employment Opportunity Commission, 2015). Examples of accommodations are note-takers and the use of communication technology. For more information, refer to the ADA National Networks Fact Sheet on Effective Communication.

Confidentiality

When a party discloses a disability or need for an accommodation, a mediator or mediator center should treat this medical information as confidentiality in keeping with most basic standard mediation practices and ethics (U.S. Equal Employment Opportunity Commission, 2015)(ADA Mediation Standards Work Group, 2000).

Conclusion

Individuals with disabilities make up a large percent of the American population. Disability anti-discrimination laws use language and establish procedures that encourage the use of alternative dispute resolution methods such as mediation, and it would be beneficial for this population to access these services to settle these types of disputes. However, this population can partake in any mediation cases; therefore, mediation service providers should be ready to serve this population in keeping with the law, to avoid discrimination, and to increase their customer base. By taking the time to acquire ADA law basics, understand and review the necessary steps needed to create accessible mediation, this can be accomplished. These actions can also help mediators and centers avoid possible case filings against them for lack of their accessibility.

References

ADA Mediation Standards Work Group. (2000, February 2000). ADA Mediation Guidelines. Mediate.com. 

Retrieved from https://www.mediate.com/articles/adaltr.cfm

 

ADA National Network. (2013).The Americans with disabilities act: questions and answers. Retrieved from 

https://www.ok.gov/odc/documents/ADANN_FAQbooklet_final.pdf  

 

ADA National Network. (n.d.) Learn about the national network. ADATA.org. Retrieved from 

https://adata.org/national-network

 

ADA.Gov. (n.d.). Lesson one: policies, practices and procedures. Retrieved from 

https://www.ada.gov/reachingout/lesson11.htm

 

Centers for Disease Control and Prevention. (n.d.) Disability impacts us all. CDC.gov. Retrieved from 

www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html

 

Cohen, J. (2003, March). ADA Mediation Guidelines: An ongoing endeavor. Mediate.com. Retrieved from 

https://www.mediate.com/articles/cohen4.cfm

 

Compton, R. (2018, June) Disability mediation: an overview. Mediate.com. Retrieved from 

https://www.mediate.com/articles/comptonr1.cfm

 

Cornell Law School. (n.d.) 42 U.S.§ 12101. Findings and Purpose. Retrieved from 

https://www.law.cornell.edu/uscode/text/42/12101

 

Goren, G.D. (2014). ADA and mediation/arbitration: things to think about. Retrieved from 

http://www.williamgoren.com/blog/2014/01/06/ada-mediation-arbitration/

 

JAMS.(n.d.). Mediators Ethics Guidelines. Retrieved from https://www.jamsadr.com/mediators-ethics/

 

JDSUPRA (2020, 24 January). EEOC release fiscal year 2019 enforcement and litigation data. Retrieved from 

https://www.jdsupra.com/legalnews/eeoc-releases-fiscal-year-2019-38686/

 

Meyerson, B. (2001) Guidelines for Mediation of ADA Claims. Mediate.com. Retrieved from 

https://www.mediate.com/articles/meyerson.cfm

 

Minh, V., Launey, K., Ryan, S. (2020, February 20). 2019 was another record-breaking year for federal ADA title III 

lawsuits. Seyfarth. Retrieved from https://www.adatitleiii.com/2020/02/2019-was-another-record-

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lawsuits/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

 

Northwest ADA Center. (n.d.). The Americans with disabilities act (ADA): An overview http://nwadacenter.org/factsheet/americans-disabilities-act-ada-overview

 

Shaw, S. (2019, July 26). Federal ADA title III lawsuit numbers continue to climb in 2019. Seyfarth. Retrieved 

from https://www.adatitleiii.com/2019/07/federal-ada-title-iii-lawsuit-numbers-continue-to-climb-in-2019/

 

U.S. Department of Justice. (2016). The ADA mediation program: questions and answers. Civil Rights Division. 

Retrieved from https://www.ada.gov/mediation_docs/mediation-q-a.pdf

 

U.S. Department of Justice. (2020, February). A guide to disability rights laws. ADA.Gov. Retrieved from 

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providers: mediation and the Americans with Disabilities Act. ADA.Gov. Retrieved from 

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Biography


Heather Kennedy is a Grad student at California State University Dominguez hills studying Negotiation, Conflict Resolution, and Peacebuilding. She graduates in May 2021. She is a certified Rhode Island & California Mediator.  She has specialized in conflict with and within the disability community through mediation and advocacy for the last two decades. This includes disability & crisis conflict in families, employment, and education. 



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