The ADA and alternative dispute resolution are two concepts that mesh very well together. The ADA itself has language in it encouraging dispute resolution. In fact, both the EEOC and the Department of Justice have mediation programs dealing with ADA lawsuits. Also, with the courts having a very favorable view towards arbitrating claims, arbitration has become more common than ever with many employers requiring that their employees to sign arbitration agreements. In addition to the ADA and alternative dispute resolution being such a good fit, alternative dispute resolution has its own advantages. First, it is less expensive than proceeding to trial. Second, it saves time and has less of an impact on a business than litigation does. Finally, mediation in particular allows for the parties themselves to craft their own solutions rather than have a solution imposed upon them by the legal system.

Some of the questions that come up with the ADA and alternative dispute resolution are: what style of mediator do you want; preparing for an ADA mediation/arbitration; what strategies might be used in an ADA mediation; whether a claim should be mediated or arbitrated, and what kind of ADA issues are better mediated versus arbitrated.

Mediator categories: Facilitative or Evaluative

With respect to mediators, mediators break down into two broad categories. Also, there is the question of how important is it that the mediator have substantive expertise in the ADA. With respect to the categories that mediators break down into, they break down into either facilitative or evaluative. A facilitative mediator is a mediator that lets the two parties come to their own conclusions through the mediation process. A true facilitative mediator is a true neutral and lets the party seek their own solutions. On the other hand, an evaluative mediator is a mediator who makes it clear which way he or she believes the case is likely to wind up. By doing so, an evaluative mediator helps the parties reach their own solutions through the mediation process. With respect to the ADA, I believe that in general a facilitative mediator possessing substantial substantive expertise (the evaluative component), in the ADA is the best way to go for several reasons.

First, as readers of my blog know by now, the ADA is an extraordinarily complex law that is extremely broad in its reach. As we have seen in the blog, there are few areas of law that are left untouched by the ADA and many of the issues are esoteric and quite complex.

Second, the ADA is full of shades of gray and contains a lot of elastic principles. In fact, the beauty of the ADA lies in its elasticity. However, that elasticity also means an increased premium on substantive knowledge of the ADA since elasticity increases complexity.

Third, prior to the amendments to the ADA, many of the cases never moved beyond the stage of whether a person had a disability. Therefore, a mediator having knowledge of the ADA itself may not have been that big of a deal. It may have been more important for the mediator to have the ability to figure out whether a disability as defined by the case law existed. However, the amendments to the ADA have moved us beyond whether a person has a disability to the merits of the case. Therefore, a mediator/arbitrator with knowledge of the substantive provisions of the ADA becomes more important because it is extremely unlikely that a case can get thrown out on the question of whether a person has a disability. As we have seen from this blog, it does happen post ADA amendments that a case may get thrown out because a person does not have a disability, but it is becoming very rare.

Fourth, a facilitative mediator with substantive expertise makes a great deal of sense for another reason. That is, disability discrimination is about real feelings on both the plaintiff and on the defense side. Plaintiff is likely to be upset that his rights and feelings as a human being with a disability have been ignored or taken advantage of. On the other hand, the defense is likely to be extremely frustrated and confused, especially if they have tried many different accommodations and a lawsuit resulted. A facilitative mediator would allow the feelings of both sides to come to the fore. That is important because the ADA is at its core about what it means to an individual with a disability to have a disability and how that person needs to get to the same starting line as a person without disabilities. On the defense side, the ADA is all about accommodating the person with a disability but not by fundamentally altering the essential nature of: the job, business, program, or activity. Both views engender quite a bit of feelings when expressed and can be very hard to evaluate.

Finally, this is not to say that an evaluative element to a facilitative mediation is not in order. With respect to the ADA, I am not convinced that a true facilitative mediator, without an evaluative component, is the answer either. As mentioned above, and as seen throughout the blog, the ADA is extraordinarily complex and if there is no evaluative piece, it may be hard to get the parties to figure out what is their win-win situation.

Preparing for an ADA mediation/arbitration

How do you prepare for an ADA mediation? Consider doing several things. First, make sure you know the applicable law. Second, recognize that the ADA is very comprehensive, somewhat esoteric, and very elastic and so you need to be flexible in your thinking. Third, know your mediator. Is the mediator selected one that has, “locked down” knowledge of the ADA or you going to have to educate the mediator? If your mediator has, “locked down” knowledge of the ADA, be prepared to find out the unexpected. On the other hand, if the mediator needs quite a bit of education about the ADA, be prepared for things to get confusing. For example, on the defense side in an employment ADA suit, the defense may try to convince the mediator, especially if the mediator is not fully in command of the ADA, that working is the operative major life activity. The plaintiff’s attorney will then have to educate that mediator that working is only a last resort and that his or her client is a person with a disability as defined by the ADA and its amendments since he or she is no doubt substantially limited in a major life activity outside of working as defined by the ADA as amended. Similarly, if a mediator does not have the substantive expertise, the defense might try in a case where the essential functions of the job are at issue, to convince the mediator that major life activities and essential functions of the job are the same thing, which they are not. Fourth, know the facts of the case since the ADA is fact intensive. That is, the ADA requires an individual analysis. Fifth, prepare the client that while mediation is nonbinding, he or she may very well find his concerns addressed by the end of the process since mediation gives the client the opportunity to get his feelings out there. Sixth, know the client’s goals and be prepared to allow the client to go one-on-one with the mediator without an attorney present. The most critical piece for preparing for mediation involving the ADA is for you and your client to keep an open mind about what the ADA may or may not require and to be flexible about how the situation can be resolved. Flexibility is critical. For example, when it comes to reasonable accommodations/modifications, creativity is the key and the key question is going to be what accommodation out there allows the person with a disability to reach the same starting line without it fundamentally altering the essential functions of the job, fundamentally altering the nature of the program or the activity, or fundamentally altering the nature of the business.

What about preparing for an ADA arbitration? It, in my opinion, requires a similar approach as to preparing for an ADA mediation. First, know your facts inside and out since the ADA is fact specific. Second, especially if the arbitrator is not all that comfortable with the ADA, you might consider expert testimony in the form of ADA compliance. That is, bringing in an expert to talk about whether the actions were or were not in compliance with the ADA. Third, know your arbitrator and the same concerns about how you might deal with a mediator with comprehensive knowledge about the ADA versus a mediator needing education about the ADA apply to the arbitrator as well. Fourth, argue your case appropriately knowing the background of the arbitrator. For example, it may not be helpful to make an argument that an arbitrator with comprehensive knowledge of the ADA would know would fail. For example, you might hear an argument that hearing is an essential function of being a lifeguard. However, as we know from our blog, a person who is deaf is certainly capable of performing the essential functions of being a lifeguard, and the mediator with command of the ADA is not likely to be receptive to such an argument.

Dynamics of an ADA Mediation/Arbitration

To see how the process of an ADA mediation might work, let’s take the following hypothetical: a deaf person loves basketball and played it. Now that his or her playing days are over, he wants to be a basketball referee. He is certainly willing to start out at the bottom and decides to join a referee Association so that he can referee junior high and high school games and then move up once he is able to demonstrate his expertise. The referee Association upon finding out that he is deaf refuses to even provide an interpreter, our hypothetical person uses ASL, as part of the training that all the referees need to go through. The deaf person sues the referee association alleging violation of title III of the ADA and also makes it clear that the referee Association, should they not give him every chance to succeed once he completes his training, may also be subject to a suit under title I of the ADA. The judge refers it to mediation. How might this play out?

First, there is little argument that the plaintiff has a disability per the ADA.

Second, the defense might argue that a person who is deaf is not going to be able to do the essential functions of being a basketball referee, and therefore, they have no duty to accommodate the person with respect to the training. This is where substantive expertise of the mediator is critical. In particular, the defense has it wrong. That is, at this point, the question is whether the deaf referee can be accommodated without it fundamentally altering the nature of the business and not whether the deaf referee is able to do the essential functions of being a basketball referee. I see this issue all the time with respect to academic institutions where an academic program in that institution says that they are off the hook because a person with disability cannot do the essential functions of the job for which that person is studying for in the academic program. It doesn’t work that way. Rather, the question is whether the person involved in the training can be reasonably accommodated. In this situation, having gone through a basketball referee training program myself (I did some refereeing at the junior high and high school level many years ago), I don’t see why a deaf person could not be reasonably accommodated in the training of being a basketball referee.

Third, the defense might also argue that the referee Association is not a place of public accommodation under title III of the ADA. Again, here is where substantive expertise may be very helpful. As we have seen, case law is evolving so that it isn’t necessarily the case that a place of public accommodation must be a physical space.

Fourth, with respect to the title one piece against the referee Association, the defense might also argue that the referee Association is off the hook because they are not an employer of the referee since most referees are independent contractors and not employees of the referee Association. Again, substantive expertise of the mediator/arbitrator is critical. As set forth in this hypothetical, the case is currently a title III suit and not a title I suit at all. Also, case law does exists saying, for example, that a person seeking privileges at a hospital could use title III as the vehicle for redressing disability discrimination. (See Mentkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3rd Cir. 1998)). Furthermore, it may be possible to show that the referee Association exercises sufficient control over the referee so that the referee would be considered an employee (See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). While this particular issue, wouldn’t be germane to the title III suit per se, it might be helpful for the mediator/arbitrator to discuss so that the defense is aware, if the pleadings hasn’t already made them aware as mentioned below, that their liability starts with title III but also may involve into a title I liability issue after the referee has completed the training. It is also possible the title one piece could be part of such a suit if the plaintiff was also moving for injunctive relief to prohibit the Association from discriminating against the plaintiff once he complete the training. Regardless, such discussion may push settlement.

Fifth, the plaintiff is going to want to argue that they can go through the training without it fundamentally altering the nature of the business. Further, for the plaintiff to get a comprehensive resolution to the matter they are going to want to show that once they do go through that training, they will be able to perform the essential functions of being a basketball referee. Here, the mediator/arbitrator may need to do some education to show that major life activities and essential functions of the job are not the same thing. Also, in the mediation process the essential functions of being a referee may need to be hammered out. That discussion should focus on the essential functions rather than on the major life activities.

Mediate or Arbitrate

While both mediation and arbitration are categories of alternative dispute resolution, they are very different from each other. Mediation is where the neutral facilitates a process where the parties create a win-win solution. Whether a particular party is right or wrong is not the issue. Rather, the focus is on reaching an understanding agreed to by the parties based upon shared interests. On the other hand, arbitration is an adversarial process and one side is the winner. The arbitrator is much like a judge in deciding the matter before him or her.

As mentioned above, the ADA is an extraordinarily broad, often esoteric, an extremely complex law. Thus, the question becomes are there certain issues better off mediated rather than arbitrated and vice versa.

Issues ideal for mediation:

This list is not exclusive, but rather it is what immediately come to mind as issues ideal for mediation under the ADA.

1. What are the essential functions of the job or the essential eligibility requirements of the program or activity? For that matter, what are the fundamental aspects of a business? All are issues ideally suited to mediation because you need to get into the head of what the business is trying to accomplish and what the person with a disability is trying to do.

2. Are reasonable accommodations possible is another ideal topic for mediation since just about anything goes providing you can get a person to the same starting line as those without disabilities without fundamentally altering the essential functions of the job, fundamentally altering the essential eligibility requirements of the program or activity, or fundamentally altering the nature of the business.

3. When does an accommodation for a licensing exam fundamentally alter the nature of that exam? This particular one may also be one suited for arbitration. It could go either way because of the education needed that a person is just trying to get to the same starting line and is not seeking an unfair advantage. On the other hand, there is also education needed that the integrity of the test cannot be compromised.

4. Whether a high school athlete with a disability can participate in a school sport.

Issues ideal for arbitration:

This list is also not exclusive, but, as above, it is rather what immediately comes to mind as issues ideal for arbitration under the ADA.

1. Is an alleged service dog engaged in recognition and response?

2. Whether a person is a direct threat to self or others.

3. Was there a pre-employment medical inquiry or exam?

4. Is there an undue burden in the financial sense?

5. Have the equal protection rights of a person with a disability been violated?

6. Is the person a recovering addict or alcoholic?

Issues that can go either way:

This list is also not exclusive, but it rather what immediately come to mind is issues that could either be arbitrated or mediated.

1. Is a place of public accommodation involved.

2. Is a structural modification readily achievable.

3. Can a zoning requirement be waived without a fundamental alteration to the program.

4. Whether a person with a history of MH is of sufficient character and fitness to be a member of the State Bar