Mediation, a form of Alternative Dispute Resolution (ADR), is a process in which a neutral third party (the mediator) assists two or more disputants in finding a mutually acceptable solution to their conflict. The mediator facilitates discus­sions, enhances communications, and uses a variety of other skills and tech­niques to help the parties reach a settlement, but has no power to make a deci­sion. The process is voluntary and confidential.

In addition to mediation, other forms of ADR include arbitration, mini-trials, early neutral evaluation, private judging, and screening panels. With the exception of mediation, all of these forms of ADR are similar to the litigation model. That is, they all use a system of advo­cates (lawyers) who represent their respective clients’ cases to a third-party decision-maker whose role is similar to that of a judge. Pri­vate judging is identical to standard litiga­tion except that it uses former judges to hear cases in private courtrooms. In arbitration, the arbitrator hears evidence from both sides and renders a decision that is often binding on those parties. In neutral expert evaluation, the attorneys for each party present their cases to a third attorney who has many years of expe­rience in the area of law at issue. This expert attorney renders an informal opinion, rather than a binding arbitration decision, that em­phasizes the strengths and weaknesses of each party’s case with the purpose of giving the parties a realistic basis for out-of-court settle­ment. Similarly, when parties choose to turn their case over to a screening panel, they allow that panel to evaluate their case at an early stage in the litigation process with the goal of reaching a settlement.

Mediation’s growing popularity can be at­tributed, in part, to the fact that it is voluntary, confidential, expeditious, and far less costly than litigation. The process also leaves the parties in control of the outcome. Further­more, participating in mediation does not require the parties to waive statutory or due process rights, and an agreement to mediate leaves the parties free to pursue other courses of action at any time they wish. Mediation also allows people to be heard and permits the parties to be as creative as they wish in formu­lating an agreement that will work for them.

Mediation sharply contrasts with the adver­sarial processes of litigation or arbitration and, at least theoretically, decreases the hostility that can result from both. Mediation neither judges guilt or innocence, nor decides who is right or wrong. Rather, its goal is to give the parties the opportunity to:

A mediator, unlike a judge, a hearing exam­iner, or an arbitrator, has no legal power to render a judgment or award. The mediator is also not an advocate for any one side, nor is the mediator acting as a therapist or counselor (although the parties may perceive the me­diation process to be therapeutic). Rather, a mediator is a neutral third party who helps the parties talk out their problems by facilitating discussions and enhancing communications. Both parties must have trust in the mediator’s neutrality; a mediator’s effectiveness depends on the parties’ trust.

Although some organizations employ in-house mediators or conflict resolution special­ists to whom employees can turn for help in resolving disputes, more commonly, human resources (H.R.) professionals are trained to use mediation techniques in the every day course of dealing with conflicts among em­ployees. Many of the mediation techniques discussed in the preceding section are used by in-house conflict resolution specialists and H.R. professionals (sometimes one and the same) as they assist employees and/or supervi­sors in trying to resolve disputes.

Creative resolution is a hallmark of media­tion. In a mediated agreement involving a legal claim, the parties can agree to a solution that would be available in court as well as to a solution beyond what a judge could order.

All of the basic principles and advantages of mediation apply equally to ADA mediations. There are also a number of additional con­siderations with ADA mediations, however, starting with ensuring that an individual with a disability is provided with any accommoda­tion necessary for him/her to participate in the mediation. Some of the special considerations that may come into play during ADA media­tions will be discussed below.

The Equal Employment Opportunity Com­mission (EEOC), which enforces ADA Title I, strongly encourages the parties to engage in an “interactive process” when determining whether and what reasonable accommodation is required to enable an applicant or employee to perform the essential functions of a job held or desired. This interactive process often results in the parties agreeing on an effective accommodation, perhaps with the help of an outside expert. When the parties cannot reach agreement, mediation may be a beneficial next step. An in-house conflict resolution specialist or H.R. person with mediation skills may be able to facilitate discussions, either informally or by conducting a full mediation with the ap­plicant or employee and the employer repre­sentative responsible for the accommodation decision. At times, it may be necessary to turn to an outside mediator if the in-house person is not considered to be sufficiently neutral.

In 2000, a National Work Group comprised of 12 mediation practitioners, trainers, and administrators developed ADA Mediation Guidelines.2 These guidelines set forth valu­able information and guidance on the media­tion of cases arising under the ADA, as well as under other disability civil rights statutes, such as the Rehabilitation Act of 1973, the Fair Housing Act Amendments of 1988, and com­parable state and local civil rights laws. The guidelines can also be applied to the media­tion of non-ADA cases, such as commercial or family disputes, that involve a party with a disability.

You want to choose a mediator who is compe­tent to mediate the type of workplace problem at issue. The Guidelines take the position that the mediator not only should be knowledge­able about the mediation process but also about the subject matter of the dispute. In general, mediators should have knowledge of disabilities, disability access, and disability law, including general ADA case law develop­ments and guidance documents issued by the regulatory agencies. A mediator knowledge­able about the status of the law will be able to work with the parties effectively in exploring the range of settlement options and will know if the parties are making informed decisions and enforceable agreements. A mediator may be competent to mediate ADA cases as a result of ADA mediation training, experience doing ADA mediations, legal knowledge of the ADA, or some combination of all of these factors.

The Guidelines make clear that mediation providers must make their services accessible to persons with disabilities. If the employer is running an internal mediation program, the employer must also ensure that the mediation is accessible.

Regarding accessibility, every aspect of media­tion, from training sessions to mediation ses­sions, should be accessible to all participants, including the parties, staff volunteers, and the mediators themselves. For these purposes, the broadest definition of disability should be applied so as to include even those individu­als with temporary disabilities who might not otherwise be considered disabled under the ADA. This is in keeping with the generally accepted mediation principle that all par­ties be able to participate fully in the process. Mediation programs should have a procedure in place by which individuals may request needed accommodations, and the mediator should be informed of any disability accom­modation that is required. Simply stated, for a mediation to be successful, all parties must be able to attend. If one party is unable to attend because a needed accommodation is not pro­vided, the mediation will not go forward.

In order for a mediation to succeed, all parties must have the capacity to (a) understand the mediation process, (b) understand the options available to resolve the conflict, and (c) give informed consent to an acceptable resolution. Parties who do not possess these capacities are referred to as having “diminished capacity” under the law.

The vast majority of ADA employment me­diations will not raise the issue of party ca­pacity. Where party capacity is questioned, the Guidelines state that the mediator shall determine whether the party at issue under­stands the nature of the mediation process, the role of the mediator, the parties’ relationship to the mediator, and the issues raised in the mediation. When determining whether the parties can understand options and enter into an agreement, the mediator is not obligated to rely solely on that party’s medical condition or diagnosis.

If a party appears to have diminished capacity or if capacity is unclear, the mediator should determine whether an accommodation would enable the party to participate effectively. If not, the mediator should determine if the person could mediate with support, such as with an attorney or with another supporting person. Finally, if a party lacks capacity to mediate even with support, the mediation can­not proceed unless a surrogate represents that party’s interests and makes decisions on his or her behalf. The Guidelines state that the issue of who can act as a surrogate is defined by state law, and might include agents with pow­ers of attorney, guardians, or family members.

An adjudication of legal incapacity is not necessarily determinative of the capacity to mediate, depending on what issue is being mediated. For example, a person might have a guardian for financial matters, but not for personal or healthcare decisions. This person could participate in a mediation about his/her medical treatment, but would need to be rep­resented by a guardian in a mediation involv­ing financial issues. A mediation agreement signed by a person without legal capacity may require co-signing by a surrogate to ensure its enforceability.

As in any mediation, the disputing parties must attend. If one of the parties is a corpo­ration or large organization, it may be repre­sented by one or more individuals, including managers, human resource representatives, or counsel. In that circumstance, an individual with the authority to settle a case on behalf of the organization should be present.

The Guidelines take the position that the par­ties may each bring a representative of their choice to the mediation session. The repre­sentative may be a disability rights advocate, expert, vocational rehabilitation counselor, job coach, family member, attorney, union repre­sentative, or other person. The representative may advise and present on behalf of the party that they represent, but, unlike a surrogate, the representative does not make decisions for the party. Some parties may choose to bring a representative who provides emotional sup­port rather than or in addition to one who acts as his or her advocate.

Persons with disabilities may be accompanied by a personal assistant (PA) who provides physical aid or other assistance. A qualified sign language or oral interpreter has the dual role of serving as an “accommodation” under the ADA³ and of facilitating communications between the individual with a disability and the other mediation participants.

Finally, the parties may engage experts to edu­cate the mediator and/or the parties about the disability and to assist in developing solutions. At times, the mediator may recommend that a neutral expert participate in the process, with the parties’ permission.

When the parties agree to a resolution, the mediator should ascertain whether the parties have considered the impact of their agreement on people who are not party to the mediation, such as other employees or labor union mem­bers. The impact of the agreement on other parties may negatively affect the enforceabil­ity, implementation, or durability of the agree­ment.

In ADA Title I cases where reasonable accom­modation is an issue, the mediation session provides the parties with an opportunity to further engage in an “interactive process” to identify and/or evaluate accommodation alternatives. Ideally, when the parties’ dispute involves accommodation, they will have com­menced the process of determining a reason­able accommodation prior to mediation of their dispute. The ADA Mediation Guidelines note that when the interactive process is tak­ing place in the context of mediation, it must be clear that anything said or done – even as part of the interactive process – will remain confidential and inadmissible as evidence in any legal proceeding, unless otherwise agreed to by the parties.

Consistent with general confidentiality obli­gations, the Guidelines state that mediators should maintain the confidentiality of disabil­ity-related information when arranging access to and conducting the mediation. While the person with a disability may have disclosed his/her disability, there still may be informa­tion that the person does not wish to reveal, such as the severity of his/her health problems. Where a mediator believes that disclosure of this information would be helpful to the medi­ation, the mediator should invite disclosure by the person with a disability during a private caucus, but may not disclose this information without permission.

As is true in any mediation where legal rights are at stake, mediators should encourage the parties to become aware of their legal rights and responsibilities under the ADA prior to the mediation so that the parties can partici­pate meaningfully and make informed deci­sions. While educational materials, such as ADA booklets, may be helpful, they are not a substitute for legal advice and representation.

The Guidelines note that before the media­tion session and at the outset of each session, parties should be advised that they may obtain legal or other representation. Parties in an ADA mediation should be advised of the risks of not being represented by counsel and of not having a potential agreement reviewed by counsel.

The mediator may refer parties to resources for finding legal representation. Where the mediator believes that a party does not under­stand the implications of a proposed agree­ment, the mediator should encourage that party to consult appropriate sources of infor­mation and advice.