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<xTITLE>Key Bridge Foundation Standards Of Conduct For DOJ ADA Mediation</xTITLE>

Key Bridge Foundation Standards Of Conduct For DOJ ADA Mediation

by Peter Maida
November 2000 Peter Maida

Standards of Conduct for ADA Mediation

ADA Mediation Program
KeyBridge Foundation
Washington, DC

Preamble

The following Standards of Conduct for ADA Mediations were developed to provide guidance to mediators on the Key Bridge Foundation Mediator Roster. These guidelines are specifically focused on mediating ADA title III complaints and title II complaints excluding employment. The Key Bridge Foundation has used and will continue to use the SPIDR “Model Standards of Conduct for Mediators” as the generic guidelines for mediation practice. These Guidelines may be obtained directly from the Society of Professionals in Dispute Resolution. The following guidelines relate to specific situations that arise in the mediation of complaints involving implementation of the ADA.

Mediators on the ADA Mediation Roster must uphold the highest standards of practice. They are expected to familiarize themselves with the SPIDR “Model Standards of Conduct for Mediators”. These standards of conduct are generic and provide excellent guidance. Some mediators may have standards of practice for mediators in the particular jurisdictions in which they practice that they also must follow.

  1. The role of the mediator is to facilitate discussions between the parties to resolve disputes about the implementation of the ADA.

    Comments: In facilitating the discussion between the parties, the mediator should be aware of barriers to effective communication.

    • A mediator should assess if auxiliary aids are needed prior to the mediation. The most direct method of ascertaining what auxiliary aids the complainant needs is by asking.

    • Barriers to communication often come in the form of preconceived ideas that the mediator might have about disabilities as well as opinions of the parties about each other.

    • A mediator should assess and then correct any misunderstandings in a manner appropriate for mediators and the mediation process.

    • Mediators have a responsibility to educate not only themselves but parties about disabilities as they relate to the complaint, the mediation process, or other matters as appropriate.

  2. Mediators must be impartial.

    Comments: A mediator must not do or say anything that would give either party the impression that they are biased.

    • A mediator is obligated to do all that is necessary to ensure that each party to the mediation has an opportunity to be informed about the ADA.

    • Each party has a right to be represented by advocates to represent their interests.

    • A mediator should ensure that each party treats one another with mutual respect avoiding stereotypical and inappropriate comments.

    • Mediators must recuse themselves from mediation if any question that arises about their impartiality, including conflicts of interest, or competence cannot be resolved.

  3. Mediators must ensure that the parties are fully informed about the law prior to making a decision about how to resolve the complaint.

    Comments: Mediators should not give legal advice. They should only impart legal information if they can be sure that parties will not take the legal information and interpret it as legal advice. To help the parties get informed about the law, mediators can use a number of techniques.

    • Mediators can provide legal information through available publications.

    • Mediators can facilitate having parties represented in the mediation by advocates.

    • Parties can receive materials prior to the mediation.

    • Mediators are obligated to represent accurate information about the law. When in doubt, contact the KBF.

  4. Each party in mediation should have access to advocates to represent their interests.

    Comments: To ensure fairness and protection of rights, mediators must assess whether an imbalance of power resulting from an inability to state ones’ interests will result in an unfair agreement.

    • Each party has a right to have legal representation throughout the mediation process.

    • Mediators should help parties find advocates to represent them in mediation.

  5. Mediators have an obligation to represent themselves as a member of the Mediator Roster in appropriate ways.

    Comments: Mediators on the roster may represent themselves as trained by the Key Bridge Foundation to mediate disputes involving the ADA. Any other representation that is confined by the general meaning of this statement is appropriate.

    • Acceptable representations are: “ADA Mediation Roster”, or “Trained to mediate ADA complaints.”

    • Mediators should never represent their connection with the Mediator Roster, with words such as “Certified” or “Certified by the Key Bridge Foundation,” or “Certified by the U.S. Department of Justice” either verbally, on business cards, advertisements, or stationery.

  6. Roster mediators who accept private requests for mediation of ADA complaints should take care to avoid any action that could have negative implications for the reputation of the roster.

    Comments: Mediators at times may represent themselves as members of the ADA Mediator Roster to generate private clients.

    • A mediator must recognize that representing oneself as a roster member carries with it the obligation not to do or say anything that would serve to cast the roster in a negative light.

    • Mediators are under no obligation to use the materials developed for this program, e.g., mediation rules and agreement, agreement form, in their private practice involving ADA disagreements as long as doing so does not lead to negative implications for the reputation of the ADA Mediation Roster.

    • Private mediation clients should be informed of the fees for mediation prior to the first mediation session.

  7. Mediating complaints involving the ADA is, for the purposes of this program, rights-based mediation.

    Comments: When parties meet in mediation in this project, they are not negotiating over whether the ADA should be implemented.

    • Even if a respondent to a complaint has a defense against the complaint, e.g., undue burden, the responsibility to look for alternative means to comply with the law is present.

    • A mediator helps parties negotiate over how the ADA will be implemented not whether it will be implemented.

    • In general, the mediator is not to stand in the way of parties voluntarily coming to an agreement. A mediator’s participation in a process that results in noncompliance with the ADA raises serious ethical issues. Noncompliance can take the form of a respondent paying a party to seek goods or services elsewhere rather than provide auxiliary aids or remove structural barriers for that person. In such cases, mediators must recuse themselves from the mediation.

  8. Mediators have an obligation to state unequivocally what a party can expect from mediation.

    Comments: Mediation for many participants is a new experience. Misunderstanding about what is possible in mediation is problematic and often results in failure of the parties to reach a resolution of the complaint or dissatisfaction with mediation or the mediator. Mediation parties have a right to be fully informed as consumers about the process that they are going to use to resolve their disagreement. Mediators should clearly state, as many times as necessary, appropriate expectations for mediation.

    • A mediator does not make decisions for the parties.

    • The parties must focus on the issue in the complaint. If they wish to raise other issues, they may.

    • Consensus between the parties about what issues are considered in mediation is required for mediation to proceed.

    • Each party must be an active participant. The mediation will not be successful if a party is passive and expects the mediator to do all the work.

    • Mediators have knowledge of the ADA but should not to be considered experts unless they actually are. Parties should always be encouraged to seek expert advice from advocates.

    • A mediator is not an advocate for either side.

  9. Mediators have an obligation to work diligently on mediation cases assigned to them.

    Comments: ADA mediation cases are complex and often involve a considerable amount of time to arrange the mediation and implement the agreement.

    • Mediators should be aware that cases referred to the mediation roster have time constraints.

    • Questions about the competency and seriousness of a mediator are raised when delay in a case is attributable to the mediator and not to the exigencies of the case.

    • Mediators may require consultation with the Key Bridge Foundation as well as proper strategizing before conducting the mediation.

  10. The rules for mediation are to inform the parties of not only the mediator’s responsibilities but also their own responsibilities.

    Comments: Mediators should be familiar with the rules for mediation and contract to mediate used for mediating ADA complaints.

    • Mediators should be certain before proceeding with mediation that parties understand the rules and have had an opportunity to ask questions about them.

    • Parties must “buy into” the rules before a mediator can expect their full participation.

  11. Mediators are expected to refer parties to outside resources when necessary so that the mediation is appropriate for the needs of all parties in resolving an ADA complaint.

    Comments: Questions arise before and during mediation that require consultation and referral to outside resources.

    • Mediators are public accommodations and thus their services must be accessible to all mediation participants.

    • Mediators must develop a list of resources that can be used to provide information about the ADA, including information about auxiliary aids and structural barrier removal.

    • Information about accessible locations for mediations is necessary if a mediator does not have an accessible office.

    • A list of community advocacy groups and advocates should be developed to be used when a party to the mediation requests the help of an advocate or other community resource.

    • The mediation should be held in a neutral location. If parties request that the mediation be held in the location identified in the complaint, the mediator must ascertain whether or not this is appropriate.

  12. Mediators are expected to maintain ongoing contact with the Key Bridge Foundation.

    Comments: The Key Bridge Foundation is a party to the mediations.

    • It is necessary for mediators who have been assigned cases to maintain regular contact with KBF.

    • Contact helps KBF monitor the progress of the mediation as well as gives mediators an opportunity for technical assistance if needed.

    • Phone calls from KBF should be returned within a reasonable time period. If a mediator fails to return a call from the KBF, we will assume that the mediator wishes to be removed from the mediation roster unless we are contacted within a reasonable time period and are informed about the extenuating circumstances.

    • Mediators should provide KBF with changes in their addresses, phone numbers, fax numbers, and E-mail addresses in a timely manner to facilitate contact with them.

  13. Mediators should respect the principle of party self-determination.

    Comments: The model of mediation explained during the ADA mediation training stressed the importance of the self-determination of the parties.

    • Mediation is not the same as arbitration or a settlement negotiation.

    • Mediators are expected to be facilitative of, and not determinative with respect to mediation outcomes.

    • Solutions to a disagreement about the implementation of the ADA should always represent the interests of the parties and not the mediator.

    • Mediators should avoid statements that would preempt self-determination.

  14. Mediators will abide by the Rules of Mediation used in this project.

    Comments: The program’s Rules of Mediation help protect the integrity of the mediation process as it relates to mediating ADA complaints filed with the U.S. Department of Justice.

    • The mediation rules help structure the mediation to ensure that it meets the expectations of the parties for a fair and impartial process.

    • Mediators should refer to the rules when a question arises with respect to the process of mediation.

  15. Program mediation rules apply whether a mediator is conducting a face-to-face mediation or a telephonic mediation.

    Comments: Sometimes, a mediator must conduct mediation with a conference call.

    • Parties to the mediation are expected to sign an agreement to mediate form and have the opportunity to have the rules explained to them. This should occur prior to the mediation.

    • Before conducting the mediation, the mediator must have in hand a copy of the agreement to mediate signed by all parties to the mediation.

  16. Mediators will enforce strict confidentiality with respect to the mediation process.

    Comments: Mediators must ensure that the parties understand the limits of what they can say to the public once they have agreed to mediate.

    • For a party to go to the media to speak about the mediation without the approval of the other parties is a violation of the confidentiality provisions of the rules of mediation.

    • Mediators will mention to the parties that the Key Bridge Foundation is a party to the mediation and will observe the confidentiality rules.

  17. Mediators must use the Agreement form that has been provided in all mediations.

    Comments: The agreement form used in this program ensures that the agreement is comprehensive and has the specificity that will facilitate the implementation.

    • Where appropriate, all sections in the agreement should be completed and discussed with the parties.

    • Parties’ advocates should be given a copy of the agreement for review if the advocates are not present during the mediation.

  18. Mediators have an obligation to continue to educate themselves about the ADA and other matters that will make them more effective and competent mediators.

    Comments: Each roster mediator should follow the directives of dispute resolution professional organizations that encourage a certain number of continuing education units every year.

    • Continuing education for roster mediators could include additional training in the ADA, and mediation training that will improve mediation skills.

    • Mediators should take advantage of any workshops dealing specifically with ADA mediation.

    • Resources, e.g., pamphlets, fact sheets, about the law and its place in ADA mediation can be obtained from the KBF.

Biography


Dr. Peter Maida has mediated disputes since 1985 between professionals, employer/employee, consumer/business, and in the areas of civil rights, EEO, commercial, human relations, health care, and domestic relations.

He is the Executive Director of the Key Bridge Foundation. His clients have included the U.S. Department of Justice, U.S. Department of Energy, Administrative Office of the U.S. Courts,
and the U.S. Department of Agriculture. He has also provided training to many private, municipal, and state government agencies.

He was a full-time permanent faculty member at the University of Maryland for twenty-five years.
He has lectured at ICAR, George Mason University in Fairfax Virginia, and the American University in Washington, DC. He currently serves on a number of national mediation panels for employment dispute resolution, including the U.S. Postal Service REDRESS panel. He has been training mediators for approximately 25 years.



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Website: www.keybridge.org

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