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

prepared jointly by theU.S. Equal Employment Opportunity CommissionNational Council on DisabilityU.S. Department of Justice

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# Questions and Answers for Parties to Mediation:Mediation and the Americans with Disabilities Act(ADA)

## Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

list of specific changes to the ADA

## Introduction

The Americans with Disabilities Act of 1990 (ADA) and theRehabilitation Act of 1973 (Rehabilitation Act) make it unlawful todiscriminate against a qualified individual with adisability.(1) This guide helpsindividuals with disabilities and their representatives understandtheir rights and responsibilities when mediating equal employmentopportunity (EEO) disputes. Although this guide focuses onmediation, information about the ADA and reasonable accommodationprinciples will generally also apply to other types of AlternativeDispute Resolution (ADR), such as conciliation, early neutralevaluation, or settlement conferences.

## Facts About Mediation of EEO Disputes

If you have an EEO dispute with your employer, you may beoffered mediation services by your employer, by a privateorganization, or by a government agency, such as the EqualEmployment Opportunity Commission (EEOC). Mediation can oftenresolve the dispute more quickly and inexpensively thaninvestigation or litigation. Mediation may be offered at any pointin the dispute process, including after you have filed a formalcharge of discrimination with an administrative agency, or afteryou have filed a lawsuit.

Mediation is an informal, confidential process for resolvingdisputes by using an impartial third-party (the mediator) who meetswith the employer and employee. The mediator has no decision-makingauthority, but rather tries to assist the parties to resolve theirdispute. Participation in mediation does not constitute anadmission of any violation of the laws enforced by EEOC. Sometimesmediation is the best way to preserve or build a better working orparting relationship. To participate, parties need only be open tothe possibility of resolution.

Generally neither party to a dispute is required to participatein mediation, or to agree to a resolution; an agreement to mediateis an agreement to work in good faith with the other party toward asolution. Mediation typically includes an opening session, followedby a joint meeting of the parties, fully and fairly allowing boththe employer and the employee to explain their point of view and tolisten to the other party's point of view. Through private andjoint meetings with the mediator, the parties attempt to developand evaluate options for reaching agreement. When an agreement isreached, usually it is memorialized in an enforceable, writtendocument signed by both parties.

Each party may have an attorney, friend, relative, or othersupport person present at the mediation. If you are not able toreach resolution through mediation, then you may still pursue anylegal claims or defenses you have preserved. The mediator is aneutral facilitator, not either party's advocate. The mediator willtry to help both parties identify their interests and ways toachieve desired outcomes.

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

- What are the main issues of concern to you? What are the mainissues of concern to the other party?
- What are your goals for the mediation? What are the goals ofthe other party?
- Who are the key players in the dispute?
- What obstacles might there be to having a productivesession?
- What will happen if the dispute is not resolved throughmediation?
- Is there anything you need to help you participate in theprocess?

## Accommodation for the Mediation Process

Sometimes individuals with disabilities will need anaccommodation 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 todisability-related fatigue, medical treatment, medication,etc.;
- management of environmental factors such as light, noise, orchemicals;
- permission for a personal assistant to accompany a partythroughout the mediation process;
- reminders about what is being discussed, the roles of otherswho are present, and the way the mediation process is conducted;and,
- other modifications to the way the mediation is ordinarilyconducted. (2)

If you are an "individual with a disability" within the meaningof the ADA, you have a legal right to reasonable accommodation inthe mediation if it is not an undue hardship, meaning it does notpose a significant difficulty or expense in light of the mediationprovider's resources or business operations, or fundamentally alterthe mediation service. Many mediators will offer accommodationwithout regard to whether or not someone is a "qualified individualwith a disability," in order to facilitate full and meaningfulparticipation by all parties to the mediation and theirrepresentatives.(3)

**1. What should I do if I believe I may requireassistance or accommodation in the mediation process due to mydisability?**

It is best to let the mediation provider know as soon aspossible that you may need an accommodation. A mediator needsadvance notice to provide many accommodations, such as signlanguage 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 caninform the person who does intake for the mediation program, themediator, or other appropriate individual responsible for themediation that you have a disability that requires anaccommodation. You may request a reasonable accommodation at anypoint during the mediation when you realize that one is needed.

**Example:** You need to check your blood sugar ortake certain medication at specified times during the day, and youassumed this would coincide with the break schedule during themediation. However, after the mediation session is well underway,you learn that breaks are not going to be taken at the times youthought. Even though the mediation already has started, you shouldexplain to the mediator your medical need for breaks at certaintimes so that he can accommodate your needs by modifying theplanned break schedule.

**2. Will any accommodations be provided without arequest?**

In general, physical sites and service providers have to complywith accessibility standards by having things like ramps andaccessible bathrooms, and must allow the use of service animals.However, there are situations where you will need to requestaccommodation because the mediation provider will otherwise not beon notice that any policy modifications or services are needed. Forexample, if you need a sign language interpreter, materials inalternative format, or other arrangements requiring advanceplanning, you should notify the mediation provider beforehand ifpossible.

**3. What do I have to say or do to ask for anaccommodation?**

You should inform the mediation provider what accommodation isneeded and why. Therequest can be oral rather than written, andneed not contain any magic words, such as "ADA" or "reasonableaccommodation," but it must be sufficient to give notice of theneed for a change or adjustment due to a medical condition.

**4. Do I have to disclose my disability to themediator?**

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

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

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

**Example:** You advise the mediator during theinitial intake that you use a wheelchair, and ask whether therewill be any problem with access to the room where the mediation isscheduled to occur. The mediator states that the mediation wasscheduled to take place on the second floor of a building that hasno elevator but, now that he is aware of your needs, he willreschedule the mediation to take place on the first floor or in analternative accessible location.

**6. Can the mediator refuse to provide an accommodationto an individual with a disability if it would be too expensive ordifficult?**

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

**Example:** A private practice solo mediator isoffering mediation services on a case in which one of the partieshas requested a sign language interpreter due to a hearingimpairment. The mediator contacts an interpreter service, andlearns that hiring an interpreter will cost $80/hour. The mediationis expected to last 6 hours. The total cost of $480 to provide theinterpreter is unlikely to be deemed a "significant difficulty orexpense" under the ADA, because the overall financial resources ofthe mediation provider are considered, not just the fee for thatsingle mediation.

**Example:** An individual with a cognitivedisability tells the mediator that she is having difficultyfollowing discussions and understanding various settlementalternatives available to her. She asks the mediator to advise herwhat settlement option he thinks is best and to do whatever he canto help convince the employer to agree to it. This is not areasonable accommodation, because it would require the mediator toact as an advisor to, or advocate for, one of the parties, ratherthan as a neutral third party, and would thus fundamentally alterthe nature of the mediation process. (Of course, the mediator mayadvise the individual regarding her right to bring arepresentative, such as an attorney or family member, to serve asan advocate during the mediation.)

**Example:** A party who uses a wheelchair requeststhat the mediator provide someone to assist him with transferringto and from his vehicle to his wheelchair when arriving anddeparting the mediation, and from his wheelchair to the toilet whenusing the bathroom during mediation breaks. The mediator may denythis requested accommodation because personal care services such asassistance with transferring do not have to be provided as areasonable accommodation. However, the mediator should also discusswith the party whether there are any alternative means for theparty to obtain the services needed, and should offer a reasonablealternative if one exists, for example allowing the party toarrange at his own expense for a personal assistant or otherindividual to be present at the mediation.

**7. Do I have the right to receive the specificaccommodation I request or can the mediator provide somethingelse?**

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

**Example:** A party with a learning disabilityrequests to tape record the mediation session, explaining to themediator that this will accommodate her inability to takecomprehensive notes. The mediator is concerned that allowing a taperecording of the mediation session will inhibit the otherparticipants and may raise confidentiality concerns, so insteadoffers to provide a qualified note taker for the session. Assumingthe notes are satisfactory, this may be an equally effectiveaccommodation.

**Example:** A party who is deaf requests that themediator provide Computer-Assisted Realtime Translation (CART)services for the mediation, whereby a qualified transcriptionistcontemporaneously types a transcript of what is said at themediation session(s), and it appears on a screen for the party toread. The mediator wishes to offer a sign language interpreterinstead of CART, to reduce the expense. Absent undue hardship, themediator must provide CART if a sign language interpreter would notbe an equally effective accommodation for the individual, forexample if the party does not use sign language or if nointerpreter is available to communicate in the type of signlanguage the party uses.

**8. Can the mediator charge me for the cost of anaccommodation?**

No. However, if the accommodation you request would posesignificant difficulty or expense, the mediator might offer a lesscostly accommodation that also meets your needs and can be providedwithout undue hardship.

**9. Does the mediator have to keep my medical informationconfidential?**

Based on standard mediation practices, the mediator should treatmedical information about you confidentially, including the factthat you requested a reasonable accommodation for themediation.(5) If it relates to thedispute being mediated, the mediator may ask you for permission toshare certain medical or disability-related information with theother party. In that case, you should advise the mediator of whatinformation he may share in the interest of reaching a resolutionin the case. All participants to a mediation, including you andyour employer, your respective representatives, and the mediator,must keep confidential all communications made during the mediationprocess.(6) Everyone in themediation will typically sign a confidentiality agreement. Afterthe mediation, all parties should destroy any notes they tookduring the mediation.

## OTHER CONSIDERATIONS

**10.****What should I do if I believe thatthe mediator does not really understand my disability, or myemployer's obligations under the ADA?**

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

**11. Do I need to be represented by an attorney inmediation?**

You are not required to have an attorney for mediation. However,many people find that representation by an attorney or anotherperson with ADA training can help both parties engage in informedparticipation and decision-making. Even if you do choose to have anattorney present with you at the mediation, you should neverthelessinform and educate yourself on the rights and issues in your case.If you choose not to have counsel present at the mediation, you maystill have an attorney review the mediation agreement and adviseyou before you sign it. The mediation provider is not required topay the cost of an attorney or other representative to participatein the mediation or to review an agreement.

**12. How can I ensure that an agreement reached in amediation will be enforced?**

If you reach an agreement in mediation that is reduced to awritten enforceable settlement agreement, you may have the right toask the EEOC or a court to enforce it.(7) There are steps you can take in advanceto ensure that the employer will do what it has agreed to do. If anagreement you reach through mediation requires that you withdraw apending EEO charge or lawsuit, or waive claims, in exchange forwhatever relief the employer agrees to provide, you may want tomake sure the agreement specifies that you will not do so until theemployer has taken the steps to which it has agreed. When youragreement will involve actions on the part of the employer (e.g.,paying money damages to you, reassigning you to a new position, orproviding an accommodation in your current position), you may wantto consider seeking the mediator's and employer's consent toinclude in the agreement a provision stating that the mediator willfollow-up in a specified period of time to determine if theagreement was carried out. The agreement also might provide thateither party can schedule another mediation if the agreement breaksdown.

**13. What should I do if no resolution is reached inmediation?**

You have the right to continue with prosecuting your legalclaim, provided you meet all other requirements. For moreinformation about how to prosecute a legal claim under the federalequal employment opportunity laws, contact the EEOC at1-800-669-4000 (voice) or 1-800-669-6820 (TTY), or obtaininformation on the Internet from http://www.eeoc.gov.

**14. Where can I get more information about mediation andthe ADA?**

The following is a list of some resources that you can consultfor 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 inEmployment Act, which prohibits discrimination against individuals40 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 inthe private sector and state and local governments; and Section 501of the Rehabilitation Act of 1973, prohibiting disabilitydiscrimination in federal government employment. In addition toinvestigation and litigation of claims, EEOC provides extensivetechnical assistance to employers and employees.

**U.S. Department of JusticeCivil Rights Division, Disability Rights Section**ADA Information Line1-800-514-0301 (voice)1-800-514-0383 (TTY)http://www.ada.gov

The Department of Justice investigates and litigates claimsunder Titles II and III of the ADA, and also litigates casesagainst public employers under Title I of the ADA. The Departmentalso provides education and technical assistance to businesses,State and local governments, and individuals with rights orresponsibilities under the ADA through a variety of means toencourage voluntary compliance. Activities include providing directtechnical assistance and guidance to the public through a toll-freeADA Information Line, an internet ADA Home Page, and Fax on Demand,developing and disseminating technical assistance materials to thepublic, undertaking outreach initiatives, and coordinating ADAtechnical 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 independentfederal agency making recommendations to the President and Congresson issues affecting Americans with disabilities. NCD's overallpurpose is to promote policies, programs, practices, and proceduresthat guarantee equal opportunity for all individuals withdisabilities, regardless of the nature or severity of thedisability; and to empower individuals with disabilities to achieveeconomic self-sufficiency, independent living, and inclusion andintegration 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 toaccessibility for people with disabilities. Key responsibilities ofthe Board include: developing and maintaining accessibilityrequirements for the built environment, transit vehicles,telecommunications equipment, and for electronic and informationtechnology; providing technical assistance and training on theseguidelines and standards; and enforcing accessibility standards forfederally-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 EmploymentPolicy of the U.S. Department of Labor providing information andguidance 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 UnitedStates that act as a one-stop comprehensive resource on ADA issuesin employment, public services, public accommodations, andcommunications. Each DBTAC center works closely with localbusiness, disability, governmental, rehabilitation, and othernetworks to provide ADA information and assistance. Programs varyin each region, but all of the centers provide technicalassistance, education and training, materials, information andreferrals, among other services.

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

ABA's Commission on Mental and Physical Disability focuses onthe law-related concerns of persons with mental and physicaldisabilities through a variety of activities and publications. Itsmission is *"*to promote the ABA's commitment to justice andthe rule of law for persons with mental, physical, and sensorydisabilities and their full and equal participation in the legalprofession." The Commission's members include lawyers and otherprofessionals, many of whom have disabilities.

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1. The ADA prohibits disabilitydiscrimination by private and public employers (Title I), state andlocal government entities (Title II), and public accommodations(Title III). The Rehabilitation Act contains similaranti-discrimination rules that apply to executive branch federalgovernment agencies as well as various federally funded programsand activities. For purposes of this document, the term "ADA" isused to refer to both the ADA and the Rehabilitation Act.

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

3. For example, the ADA MediationGuidelines (2000), available at http://www.cojcr.org, issued by a national workgroup comprised of representatives from a variety of organizations,and the Practice Standards for ADA Mediators (1999), available athttp://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 toADA mediation topics, including reasonable accommodation ofparticipants.

4. Even if you do not need anaccommodation for the mediation, if your legal claim in the casebeing mediated involves alleged disability discrimination or denialof reasonable accommodation, it may be useful in resolving the casefor you to explain to the mediator aspects of your disabilityrelevant to the workplace dispute.

5. In employer-provided mediation,there is additionally an ADA obligation requiring the employer andthe mediator to keep the employee's medical informationconfidential.

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

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