Resolving ADA cases through mediation.

Meditation provides an ideal forum in which to brainstorm when negotiating a reasonable accommodation for a worker with a disability.

Title I of the Americans with Disabilities Act (ADA) requires employers and employees to engage in an "informal, interactive process"(1) to try to accommodate an employee's disability. Mediation is an excellent setting in which to accomplish this. Mediation is an informal, nonbinding process in which a neutral third party helps the parties to negotiate and resolve their dispute--without litigation.

Based on my experience mediating several ADA cases, I have concluded that mediation is the most effective mechanism to resolve ADA issues while simultaneously accomplishing the statute's objective of transforming the workplace for people with disabilities.

The use of mediation in employment law increased greatly in the wake of a statutory makeover of equal employment opportunity (EEO) law in the early 1990s. This change occurred primarily as a result of the enactment of two statutes: the Civil Rights Act of 1991, which provides for jury trials and compensatory and punitive damages in employment discrimination cases, and Title I of the ADA, which prohibits employers from discriminating against qualified people with disabilities and requires employers to provide them with reasonable accommodations.

The impact those statutes have had on the number of EEO lawsuits filed in U.S. district courts has been great. In 1991, for example, 8,140 EEO cases were filed. In the 12-month period between October 1, 1995, and September 30, 1996, 23,152 were filed.(2)

The substantial increase in discrimination claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) and in courts has led to equally substantial backlogs and delays. The availability of compensatory damages has increased the time and expense of litigation for both sides.

In ADA cases, the critical threshold issue of whether the claimant's physical or mental impairment meets the statutory definition of "disability" has also introduced health care providers into the discovery process. Employers fear the uncertainty and financial exposure associated with having juries deciding liability and assessing compensatory and punitive damages.

In the spirit of Thomas Edison's observation that "discontent is the mother of invention," parties looking for alternatives have discovered mediation and like what they see.

Benefits

The primary advantages of mediation over litigation or arbitration are cost savings, speed, emotional impact, confidentiality, and flexibility. Most mediators charge about $300 an hour. Parties generally reserve anywhere from four hours to a full day--and evening, if necessary--for a mediation.

The average cost of a mediation generally ranges from $2,500 to $5,000. Although the parties usually split the cost of the mediation, employers sometimes agree to pay more than half the bill. Successful mediation enables the employer to avoid the costs associated with lost productivity due to depositions, trial preparation, and office gossip.

Cases can be settled much more quickly through mediation than through litigation. For example, in the EEOC's Pilot Mediation Program in 1993-94, the cases that led to a settlement were closed in an average of 67 days. In contrast, a typical EEOC charge takes an average of 294 days in order to be resolved, and the median time between filing a lawsuit and starting trial is 2 1/2 years.

Employment disputes often involve highly emotional issues. Mediation provides both parties with an opportunity to tell their side of the story and, if necessary, to vent their anger and frustration. After providing both sides with their "day in court," a mediator can begin guiding the parties to work toward the future instead of rehashing the past.

The parties have an opportunity to participate in mediation to a much greater extent than in litigation or arbitration. Because the parties are generally required to agree that everything said during or produced at the mediation is confidential, each side can avoid a public airing of the evidence and the settlement terms.

In accommodation cases, mediation also provides each side an opportunity to educate the other about what accommodations are necessary for the employee, as well as about the anticipated hardships those accommodations may impose on the employer.

Because litigation and arbitration focus on "What happened," "Who wins," and "how much," there may be no opportunity to explore mutually beneficial or creative solutions. Mediation does not share this infirmity. Since each party participates in crafting the resolution, neither can blame the judge, jury, lawyers, or judicial process for reaching the "wrong" decision. And unlike mandatory arbitration, parties to a mediation who are not pleased with the process can choose to litigate and have a jury decide the outcome.

The most compelling reason to try mediation in employment disputes is its success rate. Mediators of employment law cases that I have spoken with estimate that the parties reach a resolution about 80 percent to 90 percent of the time.

Due to the increased use of mediation in ADA cases, a 14-member ADA Mediation Standards Work Group was convened in January 1998 as a result of discussions at the 1997 annual meeting of the Society of Professionals in Dispute Resolution (SPIDR). The ADA Mediation Work Group members include practicing mediators, trainers, program administrators, and representatives of mediation service providers and professional organizations. In September, it issued proposed standards of practice unique to ADA mediation.(3)

Reasonable accommodations

The ADA provides that an employer violates the ADA by refusing to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless [the employer] can demonstrate that the accommodation would impose an undue hardship," or by "denying employment opportunities to a qualified job applicant or employee ... if such denial is based on the need ... to make reasonable accommodation."(4)

Reasonable accommodations may include making existing facilities accessible to people with disabilities; restructuring jobs; modifying work schedules; reassigning an employee to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; or providing qualified readers or interpreters.(5)

The standard of "reasonableness" is generally determined by an objective analysis, rather than a subjective one controlled by either party's concerns.(6) Nonbinding mediation provides a forum where the issues raised by the reasonable accommodation requirement can be adequately addressed by the parties.

Based on my experience with ADA litigation in general and reasonable accommodation negotiations in particular, there are 10 primary reasons to consider mediation in ADA cases:

1. There is a greater incentive to preserve the employment relationship, particularly if the case involves the issue of reasonable accommodation.

2. Claimants face a greater risk of losing early in ADA cases than in other employment discrimination cases. Suits often are dismissed at summary judgment on questions such as whether the claimant is covered under the law or is "qualified."

3. The stress and delay associated with litigation often have a debilitating effect on a claimant's disability.

4. ADA litigation generally is not as hostile as other types of employment discrimination litigation, so a major barrier to settlement is often removed.

5. Coping with the recent onset or exacerbation of a disability is a bigger priority than litigation for many claimants.

6. Employers are often more willing to listen and learn at a mediation because ADA law is Still relatively new.

7. Mediation is more conducive to creative problem solving.

8. Mediation offers a better forum in which to discuss a "global" settlement of issues dealing with long-term disability, workers' compensation, the Family and Medical Leave Act, and so on.

9. Although the success rate at the summary judgment stage is high for defendants in ADA cases, it is still expensive to obtain summary judgment because of the costs associated with retaining expert witnesses and conducting discovery related to health care providers.

10. Mediation provides an ideal forum in which to brainstorm when negotiating a reasonable accommodation.

Before referring an ADA matter to mediation, an attorney should consider the claimant's possible accommodation needs. For example, if the claimant has a mobility impairment, it is important to ensure that the mediation site is accessible.

If possible, counsel should demonstrate at the mediation the accommodation being sought and why it will work. For example, if the goal is for the employer to provide a particular type of keyboard to accommodate a clerical employee's carpel tunnel syndrome, counsel should bring the keyboard to the mediation so the claimant can show how it would work.

If a claimant is seeking an accommodation for a mental disability, an explanation by the claimant's psychiatrist at the mediation--either in person or by letter--stating why the accommodation sought should be successful may help allay the employer's concerns.

Negotiations

Regardless of whether negotiations over reasonable accommodations occur in mediation or over the telephone, the same general problem-solving principles apply. The following guidelines should assist attorneys representing employees seeking these accommodations.

The most important threshold question is whether the lawyer or the employee should handle accommodation negotiations. Lawyers may choose initially to advise their claimants behind the scenes and appear only if necessary. However, attorneys should always be directly involved in any mediation.

Employers are entitled to documentation demonstrating both the existence and severity of the disability. If the employer argues that the employee does not have a "disability" as defined by the ADA, counsel must be prepared to discuss why the claimant's physical or mental condition is a "disability" under the act.

On this point, physicians can be a claimant's best ally in the reasonable accommodation process. Unfortunately, doctors often complicate the process and become a claimant's worst enemy. Employers want definitive answers, and they want them now. But physicians are often slow to respond, and when they do, many offer vague forecasts. Unfortunately, the employer's anger toward an uncooperative doctor is usually taken out on the employee. To avoid this, the attorney should contact the doctor as early as possible and explain why a prompt reply is important.

Emotions often run high on both sides. Employees tend to be unnecessarily confrontational when seeking an accommodation. Telling the employer to "give me this accommodation or I'll sue you" is definitely not the best problem-solving approach to take.

A better approach is to have the employee write a one- to two-page letter briefly describing the disability, suggesting an accommodation, and expressing a desire to meet with the employer to discuss either the proposed accommodation or any alternatives the employer may have.

Employers will try harder to accommodate excellent employees. Counsel should not be surprised, however, when employers refuse to "go the extra mile" for average employees. Under those circumstances, the employer's unwillingness to provide an accommodation could instead lead to an enhanced monetary settlement in exchange for a resignation and a reference letter.

Employers are unlikely to be persuaded by appeals to sympathy, guilt, or fairness. However, an employer might be persuaded by appeals to economic interest. If the accommodation involves spending money, accurate costs should be made available. Accommodations are usually less expensive than employers think they will be. For example, the cost of an accommodation may be much less than the combined cost of hiring and training a new employee and the lost investment in the employee.

Similarly, an employer might be persuaded by explanations of other situations where the particular accommodation has been successful. The more amorphous the accommodation being sought, the less likely the employer will be willing to provide it. For example, an employee who seeks a medical leave of indefinite duration will likely have difficulty persuading an employer to agree to the request.

At the summary judgment stage at trial, courts tend to be deferential to employers that at least try to accommodate the employee. If the informal reasonable accommodation process breaks down, courts will scrutinize who was responsible for the breakdown.(7) Documentation proving that counsel and claimant did not cause the breakdown should be provided.

In the first case to address the issue, the court in Harter v. University of lndianapolis held that an employee who alleged that the employer failed to provide reasonable accommodations did not waive the attorney-client privilege regarding communications with his attorney on the subject of reasonable accommodations.(8)

The employer had attempted to disqualify the claimant's attorney and law firm. The employer argued that the claimant had put the attorney's advice "in issue" by filing an ADA suit in which the lawyer's participation could have been relevant when identifying who was responsible for the breakdown in the negotiations. Because an attorney's written communications reduce the likelihood of being characterized as a necessary witness, key communications with the employer or defense counsel should be confirmed in writing.

Attorneys should avoid approaching mediation as they would settlement negotiations, where claimants usually propose more than what they are willing to accept. If the negotiations succeed, the parties will have an ongoing relationship, so attorneys should resist the urge to "win." The attorney's behavior will affect the employer's perception of the employee. Techniques used in settlement negotiations during litigation may be counterproductive when negotiating accommodations.

Many employers--particularly smaller employers--know little or nothing about the ADA. Attorneys should avoid using their superior knowledge about the law to threaten or embarrass them. Employers may resist what lawyers or the government say they must do. Employers will generally not view the accommodation as a "win/ win" solution if the only "win" for them is avoiding a lawsuit.

The ADA does not necessarily require employers to provide the best accommodation or the one the employee wants. If the employer offers an alternative that enables the employee to perform the job, the employee may have to take it even if it is not the best choice.

A note about billing: Counsel should avoid representing an employee in accommodation negotiations using full or partial contingency fee arrangements. Claimants are generally billed at an hourly rate and charged a retainer. Reasonable accommodations generally cannot be quantified and, therefore, do not lend themselves to a contingent fee arrangement. Counsel may also want to consider conducting accommodation negotiations on a "flat fee" basis.

Unique opportunity

Unlike most employment cases that involve a claimant who has been terminated, reasonable accommodation cases filed under the ADA provide a unique opportunity to negotiate a mutually beneficial solution using nonbinding mediation. This process can bring a result that preserves the employee's job and career; allows the employer to avoid hiring and training a replacement; and enables both parties to avoid the time, expense, and uncertainty of litigation.

Mediation also enables practitioners to follow Abraham Lincoln's admonition to "persuade your neighbors to compromise whenever you can.... As a peacemaker, the lawyer has a superior opportunity of being a good man [or woman]. There will still be business enough"(9)

Notes

(1.) 29 C.F.R. [sections] 1630.2(0)(3) (1998).

(2.) Preface, Equal Employment Law Update, (BNA) at vi (Spring 1997).

(3.) The guidelines may be accessed at http:// www.mediate.corn/articles/adaltr.cfm. or write for them to Judith Cohen, 351 West 24th Street, 9E New York, NY, 10011-1517.

(4.) 42 U.S.C. [sections] 12112(b)(5)(A),(B) (1994).

(5.) Id. [sections] 12111(9)(A)(B).

(6.) See Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 350 (4th Cir. 1996), cert. denied, 117 S. Ct. 1844 (1997).

(7.) See Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

(8.) 5 F. Supp. 2d 657 (S.D. Ind. 1998).

(9.) Abraham Lincoln, Notes for Law Lecture (July 1, 1850), in 2 COMPLETE WORKS OF ABRAHAM LINCOLN 140, 142 (John G. Nicolay & John Hay eds., 1894).

Gary Phelan is a partner in Garrison, Phelan, Levin-Epstein, Chimes & Richardson in New Haven, Connecticut.