Disabilities Accommodations, Transaction Costs and Mediation: Evidence from the EEOC's Mediation Program

This paper examines whether a mediator's job is different and more difficult when a worker and an employer negotiate over disabilities accommodation issues as compared with negotiations over other employment discrimination issues. The mediator's job includes helping and encouraging the parties to exchange information and to accept new information as relevant to their expectations about the negotiation's results. If the information needed in disabilities accommodations negotiations is more complex, more extensive, and more closely held by the parties, transaction costs will be higher and the mediator's job in those negotiations will be more difficult. There is reason to speculate that the mediator's role in disabilities accommodations negotiations is different and more difficult. Workers' rights and employers' responsibilities under the ADA's accommodation mandate are more ambiguous and contingent than under most other anti-discrimination statutes. Employers may enter negotiations with a bias against accommodations claims. Although common to many negotiations, bilateral asymmetric information may be a particular problem in disabilities accommodations negotiations. Finally, finding an effective and efficient accommodation may be more complex and costly than redressing other forms of employment discrimination. Using an original analysis of survey data from the U.S. Equal Employment Opportunity Commission's mediation program, this paper offers preliminary evidence that informational transaction costs in disabilities accommodations negotiations and negotiations over other employment discrimination issues are different. Mediators use three techniques to overcome informational transaction costs: (1) improve information exchange; (2) de-bias negotiations; (3) serve as bridges to information about solutions to accommodations problems and, in selected cases, propose solutions that the participants would not or could not propose themselves. Participants in the EEOC mediation program were asked to react to five favorable statements about their mediators that were reasonable proxies for these three mediator techniques. I found statistically significant, if small, differences between the responses of participants in disabilities accommodations negotiations and participants in negotiations over other kinds of employment discrimination issues. This evidence suggests that mediators have a more difficult time using these three techniques to overcome transaction costs in disabilities accommodations negotiations. Because they are harder to overcome, we can deduce that there is something different about informational transaction costs in disabilities accommodations negotiations. The evidence also suggests more specific conclusions about the differences in informational transaction costs. First, information exchange is more difficult in disabilities accommodations negotiations. Second, the mediators' role in proposing solutions and providing information about possible solutions is more critical to disabilities accommodations negotiations than negotiations over other kinds of employment discrimination disputes. Finally, disabilities accommodations negotiations are more likely to be stalled and frustrated by employers' biases against disabilities accommodations. The paper concludes with a discussion of the implications of these findings and how the mediation and disabilities communities might respond.