Questions and Answers for Parties
to Mediation: Mediation and the Americans with Disabilities Act
(ADA)
prepared jointly by the
U.S. Equal Employment Opportunity Commission
National Council on Disability
U.S. Department of Justice
May 10, 2005
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. 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 at http://www.keybridge.org/med_info/ada/ada_mediator_standards.htm,
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). |