Questions and Answers for Parties to Mediation: Mediation and the Americans with Disabilities Act

Share:

Introduction

The Americans with Disabilities Act of 1990 (ADA) and the
Rehabilitation Act of 1973 (Rehabilitation Act) make it unlawful to
discriminate against a qualified individual with a
disability.⁽¹⁾ This guide helps
individuals with disabilities and their representatives understand
their rights and responsibilities when mediating equal employment
opportunity (EEO) disputes. Although this guide focuses on
mediation, information about the ADA and reasonable accommodation
principles will generally also apply to other types of Alternative
Dispute Resolution (ADR), such as conciliation, early neutral
evaluation, or settlement conferences.

Facts About Mediation of EEO Disputes

If you have an EEO dispute with your employer, you may be
offered mediation services by your employer, by a private
organization, or by a government agency, such as the Equal
Employment Opportunity Commission (EEOC). Mediation can often
resolve the dispute more quickly and inexpensively than
investigation or litigation. Mediation may be offered at any point
in the dispute process, including after you have filed a formal
charge of discrimination with an administrative agency, or after
you have filed a lawsuit.

Mediation is an informal, confidential process for resolving
disputes by using an impartial third-party (the mediator) who meets
with the employer and employee. The mediator has no decision-making
authority, but rather tries to assist the parties to resolve their
dispute. Participation in mediation does not constitute an
admission of any violation of the laws enforced by EEOC. Sometimes
mediation is the best way to preserve or build a better working or
parting relationship. To participate, parties need only be open to
the possibility of resolution.

Generally neither party to a dispute is required to participate
in mediation, or to agree to a resolution; an agreement to mediate
is an agreement to work in good faith with the other party toward a
solution. Mediation typically includes an opening session, followed
by a joint meeting of the parties, fully and fairly allowing both
the employer and the employee to explain their point of view and to
listen to the other party’s point of view. Through private and
joint meetings with the mediator, the parties attempt to develop
and evaluate options for reaching agreement. When an agreement is
reached, usually it is memorialized in an enforceable, written
document signed by both parties.

Each party may have an attorney, friend, relative, or other
support person present at the mediation. If you are not able to
reach resolution through mediation, then you may still pursue any
legal claims or defenses you have preserved. The mediator is a
neutral facilitator, not either party’s advocate. The mediator will
try to help both parties identify their interests and ways to
achieve desired outcomes.

Here are some key questions for parties to consider in preparing
to participate in mediation:

• What are the main issues of concern to you? What are the main
  issues of concern to the other party?
• What are your goals for the mediation? What are the goals of
  the other party?
• Who are the key players in the dispute?
• What obstacles might there be to having a productive
  session?
• What will happen if the dispute is not resolved through
  mediation?
• Is there anything you need to help you participate in the
  process?

Accommodation for the Mediation Process

Sometimes individuals with disabilities will need an
accommodation to allow full participation in the mediation process.
Accommodations that might be needed include:

• assistance with verbal or written communications;
• specific meeting times or specific break times due to
  disability-related fatigue, medical treatment, medication,
  etc.;
• management of environmental factors such as light, noise, or
  chemicals;
• permission for a personal assistant to accompany a party
  throughout the mediation process;
• reminders about what is being discussed, the roles of others
  who are present, and the way the mediation process is conducted;
  and,
• other modifications to the way the mediation is ordinarily
  conducted.⁽²⁾

If you are an “individual with a disability” within the meaning
of the ADA, you have a legal right to reasonable accommodation in
the mediation if it is not an undue hardship, meaning it does not
pose a significant difficulty or expense in light of the mediation
provider’s resources or business operations, or fundamentally alter
the mediation service. Many mediators will offer accommodation
without regard to whether or not someone is a “qualified individual
with a disability,” in order to facilitate full and meaningful
participation by all parties to the mediation and their
representatives.⁽³⁾

1. What should I do if I believe I may require
assistance or accommodation in the mediation process due to my
disability?

It is best to let the mediation provider know as soon as
possible that you may need an accommodation. A mediator needs
advance notice to provide many accommodations, such as sign
language interpreters, alternative formats for written documents,
or an accessible location. The sooner you request an accommodation,
the better you can ensure it will be timely provided. You can
inform the person who does intake for the mediation program, the
mediator, or other appropriate individual responsible for the
mediation that you have a disability that requires an
accommodation. You may request a reasonable accommodation at any
point during the mediation when you realize that one is needed.

Example: You need to check your blood sugar or
take certain medication at specified times during the day, and you
assumed this would coincide with the break schedule during the
mediation. However, after the mediation session is well underway,
you learn that breaks are not going to be taken at the times you
thought. Even though the mediation already has started, you should
explain to the mediator your medical need for breaks at certain
times so that he can accommodate your needs by modifying the
planned break schedule.

2. Will any accommodations be provided without a
request?

In general, physical sites and service providers have to comply
with accessibility standards by having things like ramps and
accessible bathrooms, and must allow the use of service animals.
However, there are situations where you will need to request
accommodation because the mediation provider will otherwise not be
on notice that any policy modifications or services are needed. For
example, if you need a sign language interpreter, materials in
alternative format, or other arrangements requiring advance
planning, you should notify the mediation provider beforehand if
possible.

3. What do I have to say or do to ask for an
accommodation?

You should inform the mediation provider what accommodation is
needed and why. Therequest can be oral rather than written, and
need not contain any magic words, such as “ADA” or “reasonable
accommodation,” but it must be sufficient to give notice of the
need for a change or adjustment due to a medical condition.

4. Do I have to disclose my disability to the
mediator?

If you need an accommodation for the mediation process, you will
need to explain what you need and why you need it in order to put
the mediator on notice of your request for accommodation and to
enable her to provide it.⁽⁴⁾

5. What if I have certain disability-related needs, but
I am not sure whether I’ll need an accommodation?

You should ask the mediator any questions you have about the
mediation site and/or the process so that you can decide whether
you need an accommodation. You should advise the mediator of the
nature of your concerns so that he can fully respond to them.

Example: You advise the mediator during the
initial intake that you use a wheelchair, and ask whether there
will be any problem with access to the room where the mediation is
scheduled to occur. The mediator states that the mediation was
scheduled to take place on the second floor of a building that has
no elevator but, now that he is aware of your needs, he will
reschedule the mediation to take place on the first floor or in an
alternative accessible location.

6. Can the mediator refuse to provide an accommodation
to an individual with a disability if it would be too expensive or
difficult?

The mediator must provide you with a reasonable accommodation if
this can be done without significant difficulty or expense and
without fundamentally altering the mediation services. Note,
however, that personal use items and personal care services are
generally not considered reasonable accommodations.

Example: A private practice solo mediator is
offering mediation services on a case in which one of the parties
has requested a sign language interpreter due to a hearing
impairment. The mediator contacts an interpreter service, and
learns that hiring an interpreter will cost $80/hour. The mediation
is expected to last 6 hours. The total cost of $480 to provide the
interpreter is unlikely to be deemed a “significant difficulty or
expense” under the ADA, because the overall financial resources of
the mediation provider are considered, not just the fee for that
single mediation.

Example: An individual with a cognitive
disability tells the mediator that she is having difficulty
following discussions and understanding various settlement
alternatives available to her. She asks the mediator to advise her
what settlement option he thinks is best and to do whatever he can
to help convince the employer to agree to it. This is not a
reasonable accommodation, because it would require the mediator to
act as an advisor to, or advocate for, one of the parties, rather
than as a neutral third party, and would thus fundamentally alter
the nature of the mediation process. (Of course, the mediator may
advise the individual regarding her right to bring a
representative, such as an attorney or family member, to serve as
an advocate during the mediation.)

Example: A party who uses a wheelchair requests
that the mediator provide someone to assist him with transferring
to and from his vehicle to his wheelchair when arriving and
departing the mediation, and from his wheelchair to the toilet when
using the bathroom during mediation breaks. The mediator may deny
this requested accommodation because personal care services such as
assistance with transferring do not have to be provided as a
reasonable accommodation. However, the mediator should also discuss
with the party whether there are any alternative means for the
party to obtain the services needed, and should offer a reasonable
alternative if one exists, for example allowing the party to
arrange at his own expense for a personal assistant or other
individual to be present at the mediation.

7. Do I have the right to receive the specific
accommodation I request or can the mediator provide something
else?

If more than one accommodation solution would meet your needs,
the mediator may choose which one to provide. If the mediator’s
proposed accommodation would not be effective for you, explain to
the mediator why, so that she has an opportunity to explore an
alternative accommodation with you.

Example: A party with a learning disability
requests to tape record the mediation session, explaining to the
mediator that this will accommodate her inability to take
comprehensive notes. The mediator is concerned that allowing a tape
recording of the mediation session will inhibit the other
participants and may raise confidentiality concerns, so instead
offers to provide a qualified note taker for the session. Assuming
the notes are satisfactory, this may be an equally effective
accommodation.

Example: A party who is deaf requests that the
mediator provide Computer-Assisted Realtime Translation (CART)
services for the mediation, whereby a qualified transcriptionist
contemporaneously types a transcript of what is said at the
mediation session(s), and it appears on a screen for the party to
read. The mediator wishes to offer a sign language interpreter
instead of CART, to reduce the expense. Absent undue hardship, the
mediator must provide CART if a sign language interpreter would not
be an equally effective accommodation for the individual, for
example if the party does not use sign language or if no
interpreter is available to communicate in the type of sign
language the party uses.

8. Can the mediator charge me for the cost of an
accommodation?

No. However, if the accommodation you request would pose
significant difficulty or expense, the mediator might offer a less
costly accommodation that also meets your needs and can be provided
without undue hardship.

9. Does the mediator have to keep my medical information
confidential?

Based on standard mediation practices, the mediator should treat
medical information about you confidentially, including the fact
that you requested a reasonable accommodation for the
mediation.⁽⁵⁾ If it relates to the
dispute being mediated, the mediator may ask you for permission to
share certain medical or disability-related information with the
other party. In that case, you should advise the mediator of what
information he may share in the interest of reaching a resolution
in the case. All participants to a mediation, including you and
your employer, your respective representatives, and the mediator,
must keep confidential all communications made during the mediation
process.⁽⁶⁾ Everyone in the
mediation will typically sign a confidentiality agreement. After
the mediation, all parties should destroy any notes they took
during the mediation.

OTHER CONSIDERATIONS

10. What should I do if I believe that
the mediator does not really understand my disability, or my
employer’s obligations under the ADA?

You are free to provide the mediator with resource information,
such as publications or the contact information for neutral
experts, to assist in explaining your disability and your view of
the legal dispute. If, after having done this, you still feel the
mediator is biased or not properly informed, you should express
your concerns to the mediator and/or the mediation program
coordinator to determine if the problem can be remedied or another
mediator assigned. Remember that mediation is voluntary and can be
discontinued at any time by either party.

11. Do I need to be represented by an attorney in
mediation?

You are not required to have an attorney for mediation. However,
many people find that representation by an attorney or another
person with ADA training can help both parties engage in informed
participation and decision-making. Even if you do choose to have an
attorney present with you at the mediation, you should nevertheless
inform and educate yourself on the rights and issues in your case.
If you choose not to have counsel present at the mediation, you may
still have an attorney review the mediation agreement and advise
you before you sign it. The mediation provider is not required to
pay the cost of an attorney or other representative to participate
in the mediation or to review an agreement.

12. How can I ensure that an agreement reached in a
mediation will be enforced?

If you reach an agreement in mediation that is reduced to a
written enforceable settlement agreement, you may have the right to
ask the EEOC or a court to enforce it.⁽⁷⁾ There are steps you can take in advance
to ensure that the employer will do what it has agreed to do. If an
agreement you reach through mediation requires that you withdraw a
pending EEO charge or lawsuit, or waive claims, in exchange for
whatever relief the employer agrees to provide, you may want to
make sure the agreement specifies that you will not do so until the
employer has taken the steps to which it has agreed. When your
agreement will involve actions on the part of the employer (e.g.,
paying money damages to you, reassigning you to a new position, or
providing an accommodation in your current position), you may want
to consider seeking the mediator’s and employer’s consent to
include in the agreement a provision stating that the mediator will
follow-up in a specified period of time to determine if the
agreement was carried out. The agreement also might provide that
either party can schedule another mediation if the agreement breaks
down.

13. What should I do if no resolution is reached in
mediation?

You have the right to continue with prosecuting your legal
claim, provided you meet all other requirements. For more
information about how to prosecute a legal claim under the federal
equal employment opportunity laws, contact the EEOC at
1-800-669-4000 (voice) or 1-800-669-6820 (TTY), or obtain
information on the Internet from http://www.eeoc.gov.

14. Where can I get more information about mediation and
the ADA?

The following is a list of some resources that you can consult
for information about the ADA and about mediation:

FEDERAL AGENCIES

U.S. Equal Employment Opportunity Commission (EEOC)
1-800-669-4000 (voice)
1-800-669-6820 (TTY)
http://www.eeoc.gov

EEOC Publications Center:
1-800-669-3362 (voice)
1-800-800-3302 (TTY)

EEOC private sector mediation programs:
http://www.eeoc.gov/mediate/index.html

The EEOC enforces Title VII of the Civil Rights Act of 1964,
which prohibits employment discrimination based on race, color,
religion, sex, and national origin; the Age Discrimination in
Employment Act, which prohibits discrimination against individuals
40 years of age or older; sections of the Civil Rights Act of 1991;
the Equal Pay Act; Title I of the Americans with Disabilities Act,
which prohibits discrimination against people with disabilities in
the private sector and state and local governments; and Section 501
of the Rehabilitation Act of 1973, prohibiting disability
discrimination in federal government employment. In addition to
investigation and litigation of claims, EEOC provides extensive
technical assistance to employers and employees.

U.S. Department of Justice
Civil Rights Division, Disability Rights Section
ADA Information Line
1-800-514-0301 (voice)
1-800-514-0383 (TTY)
http://www.ada.gov

The Department of Justice investigates and litigates claims
under Titles II and III of the ADA, and also litigates cases
against public employers under Title I of the ADA. The Department
also provides education and technical assistance to businesses,
State and local governments, and individuals with rights or
responsibilities under the ADA through a variety of means to
encourage voluntary compliance. Activities include providing direct
technical assistance and guidance to the public through a toll-free
ADA Information Line, an internet ADA Home Page, and Fax on Demand,
developing and disseminating technical assistance materials to the
public, undertaking outreach initiatives, and coordinating ADA
technical assistance government-wide.

National Council on Disability
202-272-2004 (voice)
202-272-2074 (TTY)
http://www.ncd.gov

The National Council on Disability (NCD) is an independent
federal agency making recommendations to the President and Congress
on issues affecting Americans with disabilities. NCD’s overall
purpose is to promote policies, programs, practices, and procedures
that guarantee equal opportunity for all individuals with
disabilities, regardless of the nature or severity of the
disability; and to empower individuals with disabilities to achieve
economic self-sufficiency, independent living, and inclusion and
integration into all aspects of society.

Access Board
1-800-USA-ABLE (1-800-872-2253) (V/TTY)
http://www.access-board.gov

The Access Board is an independent federal agency devoted to
accessibility for people with disabilities. Key responsibilities of
the Board include: developing and maintaining accessibility
requirements for the built environment, transit vehicles,
telecommunications equipment, and for electronic and information
technology; providing technical assistance and training on these
guidelines and standards; and enforcing accessibility standards for
federally-funded facilities.

OTHER RESOURCES

Job Accommodation Network (JAN)
1-800-526-7234 (V/TTY)
http://www.jan.wvu.edu

JAN is a free service of the Office of Disability Employment
Policy of the U.S. Department of Labor providing information and
guidance on reasonable accommodation in the workplace.

ADA Disability and Technical Assistance Center
(DBTAC)
1-800-949-4232 (V/TTY)
http://www.adata.org

There are ten regional DBTAC centers throughout the United
States that act as a one-stop comprehensive resource on ADA issues
in employment, public services, public accommodations, and
communications. Each DBTAC center works closely with local
business, disability, governmental, rehabilitation, and other
networks to provide ADA information and assistance. Programs vary
in each region, but all of the centers provide technical
assistance, education and training, materials, information and
referrals, among other services.

American Bar Association (ABA) Commission on Mental and
Physical Disability Law
(202) 662-1570
http://www.abanet.org/disability

ABA’s Commission on Mental and Physical Disability focuses on
the law-related concerns of persons with mental and physical
disabilities through a variety of activities and publications. Its
mission is “to promote the ABA’s commitment to justice and
the rule of law for persons with mental, physical, and sensory
disabilities and their full and equal participation in the legal
profession.” The Commission’s members include lawyers and other
professionals, many of whom have disabilities.

---

1. The ADA prohibits disability
discrimination by private and public employers (Title I), state and
local government entities (Title II), and public accommodations
(Title III). The Rehabilitation Act contains similar
anti-discrimination rules that apply to executive branch federal
government agencies as well as various federally funded programs
and activities. For purposes of this document, the term “ADA” is
used to refer to both the ADA and the Rehabilitation Act.

2. The term “reasonable
accommodation” is used in this document to refer not only to
“reasonable accommodation” in employer-sponsored mediation
programs, but also “reasonable modifications of policies,
practices, and procedures,” the provision of “auxiliary aids and
services,” and other similar changes that provide accessibility for
people with disabilities in private and government-sponsored
mediation programs. “Auxiliary aids” include such services or
devices as qualified interpreters, assistive listening devices,
telecommunications devices for deaf persons (“TDD” or “TTY”),
readers, taped texts, Brailled materials, and large print
materials.

3. For example, the ADA Mediation
Guidelines (2000), available at http://www.cojcr.org, issued by a national work
group comprised of representatives from a variety of organizations,
and the Practice Standards for ADA Mediators (1999), available:
here,
issued by the Center for Mediation, Key Bridge Foundation,
Washington, D.C., provide voluntary practice standards relating to
ADA mediation topics, including reasonable accommodation of
participants.

4. Even if you do not need an
accommodation for the mediation, if your legal claim in the case
being mediated involves alleged disability discrimination or denial
of reasonable accommodation, it may be useful in resolving the case
for you to explain to the mediator aspects of your disability
relevant to the workplace dispute.

5. In employer-provided mediation,
there is additionally an ADA obligation requiring the employer and
the mediator to keep the employee’s medical information
confidential.

6. EEOC Alternative Dispute
Resolution Policy Statement (July 17, 1995) (available at http://www.eeoc.gov/policy/docs/adrstatement.html);
Questions and Answers About Mediation (explaining EEOC’s Mediation
Program for charges pending before EEOC) (available at http://www.eeoc.gov/mediate/mediation_qa.html).
Threats of physical harm present an exception to the
confidentiality rule, and can be disclosed.

7. EEOC Alternative Dispute
Resolution Policy Statement (July 17, 1995) (available at http://www.eeoc.gov/policy/docs/adrstatement.html).