Mediation and the Americans with Disabilities Act: Another Approach to Engaging in the "Interactive Process"

The Americans with Disabilities Act was designed to help ensure that all people, regardless of their disability, can have an opportunity to access goods, services and employment.  The law is designed to accomplish this in several ways, but perhaps the most fundamental way is through good communication.  

In the language of the ADA, this communication is referred to as the interactive process. The ADA is premised on the idea that proper communication between people with disabilities and their employers or other service providers can happen in a back and forth discussion about what the individual needs and what the employer or service provider can provide them.  In an ideal world, the interactive process looks like a productive back-and-forth discussion that results in what the law calls a “reasonable accommodation.”  In other words, effective communication about a need leads to creative problem solving, and the result is that the individual with the disability gets a reasonable accommodation in order to perform a job for the employer or engage a service provider.  Everybody wins.

Of course, we do not live in an ideal world, and the interactive process routinely falls apart due to ineffective communication.  When there is a communication breakdown between parties around what a reasonable accommodation would look like, the ADA simply cannot function.  This leads to dissatisfaction, and eventual lawsuits.

Mediation can provide another bite at the interactive process apple by facilitating an effective interactive process.  The purpose of the ADA can be fulfilled, an appropriate compromise can be reached, and a lawsuit avoided just by bringing the parties together with a trained workplace mediator.

I was reminded of this just recently, when I was brought in to mediate a claim brought with a government agency under the ADA.  In this situation, an individual with a disability and his employer had not been able to engage in an interactive process to figure out what the employee needed and what the employer could offer.  As a result, the employee had filed a charge of discrimination and was threatening a splashy disability lawsuit.

At the start of the mediation, it was clear that hard feelings abounded.  The employer was floored at being accused of discriminating against disabled employees and terrified of the negative publicity and cost this lawsuit would bring.  The employee was deeply disappointed and frustrated, and felt disrespected on behalf of the larger disability community.  Disaster appeared to be looming.

But thankfully these parties came to the mediation table instead of just forging ahead through litigation.  By using the mediation process, we soon discovered that the parties had never properly engaged in an interactive process in the first place.  The parties had never had a direct discussion of what the employee’s needs were.  Through mediation, I was able to help the employee clearly articulated the accommodation he required to do his job.  Once the employer understood what was being asked, they were readily able to provide the accommodation.  The employee was able to give his best efforts to the company, and the employer got a loyal employee and a better understanding of how to communicate with employees with disabilities in the future.  It was a true win-win.  Through the process of mediation, within a few hours, the lawsuit was dropped, good feelings restored and the promise of the ADA was fulfilled.  

Effective communication and engaging in the interactive process is the crux of the ADA.  Taking a mediation-based approach to the Americans with Disabilities Act helps to ensure that all parties involved clearly understand what is requested, what is possible and what is at stake.  If you find yourself facing a dispute under the ADA, litigation is not an inevitability.  Consider working with a mediator to help you properly engage in the interactive process and work towards a win-win resolution.

Getting the Most Out Of Mediation: Know Your Goals and Act Accordingly

As a mediator, I am often asked by my lawyer colleagues about the mediation process and how they can best utilize it in the most successful way for their clients and themselves.  While there are many tips and tricks to getting the most out of the mediation process (many of which I will explore in future posts), it all boils down to one key message: know your goals for mediation and then make a plan to participate in the process to best achieve those goals. 

As with most things in life, once you understand what it is you want, you can then make the best decisions to work towards getting what you want.  Mediation is no different, and the most successful mediation advocates understand this.

Here are some concrete examples based on four common goals parties seek to achieve in the mediation: resolution of a conflict; information gathering and sharing; repairing a relationship; and getting closure.

1)      Conflict Resolution

On the most basic level, this is the point of engaging in mediation.  As a process, mediation can be the most effective tool you have to get a meaningful resolution to your (or your clients’) problems.  But in order to best utilize this process, you have to be as clear as you can be about what it is you want to see happen.

·         Make sure you have a clear understanding of the underlying conflict and the mediation process. 

·   If you have any questions, make sure to ask them and get the answers you need to make the best decision about resolution.

·         Be clear on what it is you want. 

·   What is it going to take to resolve this issue?  What do you need to feel like the problem has been fixed?

·         Be aware of what you can do and are willing to do to get this conflict resolved.

·         Come with the appropriate authority to settle. 

·   Nothing is more frustrating for a party to reveal a few hours into mediation that they do not have the appropriate authority to talk about the terms necessary to settle a conflict. 

·   Make sure you come prepared to make any agreements to fix your problems, and be upfront with the scope of settlement you have.

2)      Information Gathering and Sharing

The fluidity and openness of the mediation process creates useful opportunities for the parties to get a better sense of what is really going on.  If your primary goal is to get more information about the conflict itself, what the other side is thinking, or what the other side is looking for, then use the following framework to prepare for a useful mediation session.

·         Be clear on what you do understand about the situation that brought you to mediation, then identify the information you still need from the other party to help you make an informed decision about your conflict.

·         Be prepared to engage in active listening to fully process and understand what information the other side has to share.

·         Use the mediator to share information and gather information from the other side.  Work with the mediator to get your questions answered.

·         Be open to returning for another session to use this newfound information to craft a resolution.

3)      Repairing a Relationship

An extremely common, but often overlooked, use of the mediation process is to create a space to bring parties in conflict together to help repair their relationship.  This is the focus in a number of workplace disputes I mediate, especially when issues arise between management and employees.  The goal of repairing a relationship also often comes to the forefront in business negotiations, contractual disputes, domestic issues and neighbor disputes.  Take some time to see if addressing relationship issues is at the core of your conflict; if it is, mediation can be an extremely effective way to fix relationship problems.

·         Come into the process prepared to listen to the other side.

·   Try to see where the other side is coming from.

·         Use your mediator as someone who can help facilitate a dialogue between the parties and help establish more helpful patterns of communication for the future.

·         Be clear on what you need from the other party to make your relationship functional moving forward, and make sure you understand what they need.

·         Be willing to compromise.

·         Keep in mind any mutual goals you share with the other party.  What is your relationship trying to accomplish?  How can you make decisions about your relationship in mediation to help achieve these goals?

4)      Getting Closure

Another reason people come to the mediation process is because they just want to move on from this issue and move forward.  This is especially true in cases that have dragged on through administrative proceedings and litigation for a number of years, and at least one of the parties just wants to be over and done with it.  Mediation can get you more quickly to closure, if you are clear about that being your goal.

·         Understand that your mediation is about the future.

·   Accept that you cannot fix or change what has happened in the past.

·         Take some time to put a value on moving forward. 

·   What would it mean to you to put this problem behind you? 

·   What is it worth to you to be able to leave the mediation and move forward in your life without having to think about this problem? 

·   Use this information to help you come to an appropriate resolution.

Every mediation is different, and your goals in each mediation will vary based on the particular circumstances. Sometimes your goal will be very clear cut, other times it will be more amorphous.  Your goal may be singular, or you may come to the process hoping to achieve multiple goals.  Your goal may even shift and change over the course of the mediation.  The only thing that matters is understanding your goal.  As soon as you have a grasp on what you are trying to achieve, you can better work with the mediator to get you what you want and need.

Mediation: Flexible, Effective and Nuanced

Our legal system developed as method of dispute resolution.  Parties in conflict who could not resolve their issues would take their conflict to the courts; marshaling their evidence and turning to a judge or jury to tell them who was right and who was wrong and how things should be fixed based on what the laws – our way of defining what is right and wrong – required.

As a method of dispute resolution, of fixing problems, the legal system is effective, but not the most flexible.  In order for parties to utilize the legal system, they must cram their problems in to a very specific framework in order to obtain “justice” in the form of a judicial decision or jury verdict.  Not only must the problems be presented in a specific way based on what the courts require and how the laws are written, the solutions are also similarly specific and limited.  This is why you see so many workplace disputes crammed into employment discrimination or wrongful termination suits, even though the issues at play do not exactly fit within these parameters.

A more flexible and nuanced approach to dispute resolution would be more useful, and this is exactly what mediation promises.  Because mediation is a process outside of litigation within the court system, it can be tailored to suit the needs of particular parties with a particular dispute.  Mediation is not a rigid system of determining right versus wrong; rather, in the hands of a skilled mediator, it can be a fluid process that acknowledges nuance while focusing on resolution.  It can empower parties to think more broadly about what the issues actually are, and broadens the options for finding solutions and righting perceived wrongs.

Perhaps even more importantly, mediation can broaden the possibilities of what justice looks like.  Often times, parties turn towards the traditional legal system in order to “have their day in court” in order to seek justice for wrongs.  But after the several years and great expense of money and resources that litigation requires, parties are often surprised that the outcome does not feel like justice to them.  

Mediation offers an opportunity to cut to the chase.  By giving parties an opportunity to think about what justice would look like to them without the procedural difficulties or limitations provided by existing legal frameworks, a trained mediator can help parties craft solutions that are meaningful.  Justice can take many forms, and a mediator helps the parties appreciate that, all while helping them arrive at a resolution to their conflict.  And all at a fraction of the time, money and energy required by litigation.