Resolving ADA cases through mediation.Meditation provides an ideal forum in which to brainstorm when negotiating a reasonable accommodation Reasonable accommodation is a legal term used in Canada, which is the legal obligation to modify a law or a norm when it is contrary to fundamental rights stipulated in Canadian Charter of Rights and Freedoms. for a worker with a disability.
Title I of the Americans with Disabilities Act Americans with Disabilities Act, U.S. civil-rights law, enacted 1990, that forbids discrimination of various sorts against persons with physical or mental handicaps. (ADA Ada, city, United States
Ada (ā`ə), city (1990 pop. 15,820), seat of Pontotoc co., S central Okla.; inc. 1904. It is a large cattle market and the center of a rich oil and ranch area. ) 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 An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called 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 EEO Equal Employment Opportunity
EEO Equal Employment Office
EEO Eastern European Outreach (Murrieta, CA)
EEO Extremely Elliptical Orbit
EEO Exotic Electro-Optics, Inc. ) 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 Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. 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 reasonable accommodations A standard of providing for a worker's or customer's needs, as mandated by the ADA, which requires that a business make appropriate changes in the environment to accommodate those with mental or physical disabilities as long as such .
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 EEOC
Equal Employment Opportunity Commission
EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comisión que investiga discriminación racial o sexual en el empleo ) and in courts has led to equally substantial backlogs and delays. The availability of compensatory damages A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another. has increased the time and expense of litigation for both sides.
In ADA cases, the critical threshold Critical threshold, a notion derived from the percolation theory, refers to a threshold, that summons up to a critical mass. Under the threshold the phenomenon tends to abort, above the threshold, it tends to grow exponentially. 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 Looking for
In the context of general equities, this describing a buy interest in which a dealer is asked to offer stock, often involving a capital commitment. Antithesis of in touch with. alternatives have discovered mediation and like what they see.
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 Office Gossip is a short-lived British sitcom starring Pauline Quirke that lasted only one series in 2001. It was written by Paul Mayhew-Archer, who co-wrote The Vicar of Dibley, and George Pritchett. .
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 Adj. 1. mutually beneficial - mutually dependent
dependent - relying on or requiring a person or thing for support, supply, or what is needed; "dependent children"; "dependent on moisture" or creative solutions. Mediation does not share this infirmity Flaw, defect, or weakness.
In a legal sense, the term infirmity is used to mean any imperfection that renders a particular transaction void or incomplete. For example, if a deed drawn up to transfer ownership of land contains an erroneous description of it, an . 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 Mandatory arbitration is a contract policy that prevents a conflict from receiving judicial attention. In a mandatory arbitration, liability for damages must be determined as a result of an arbitration process before a civil lawsuit can be filed in the court system. , 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 SPIDR Society of Professionals In Dispute Resolution
SPIDR Space Physics Interactive Data Resource (NOAA NGDC)
SPIDR System and Part Integrated Data Resource ). 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)
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 undue hardship Social medicine A term used in the context of the ADA, in which an employer may claim that the accommodations required to comply with the ADA are financially unviable and represent 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 CLAIMANT. In the courts of admiralty, when the suit is in rem, the cause is entitled in the Dame of the libellant against the thing libelled, as A B v. Ten cases of calico and it preserves that title through the whole progress of the suit. is covered under the law or is "qualified."
3. The stress and delay associated with litigation often have a debilitating de·bil·i·tat·ing
Causing a loss of strength or energy.
Weakening, or reducing the strength of.
Mentioned in: Stress Reduction 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 Creative problem solving is the mental process of creating a solution to a problem. It is a special form of problem solving in which the solution is independently created rather than learned with assistance. Creative problem solving requires more than just knowledge and thinking. .
8. Mediation offers a better forum in which to discuss a "global" settlement of issues dealing with long-term disability, workers' compensation workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work. , 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 carpel
One of the leaflike, seed-bearing structures that constitute the innermost whorl of a flower. One or more carpels make up the pistil. Fertilization of an egg within a carpel by a pollen grain from another flower results in seed development within the 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 al·lay
tr.v. al·layed, al·lay·ing, al·lays
1. To reduce the intensity of; relieve: allay back pains. See Synonyms at relieve.
2. the employer's concerns.
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 deferential /def·er·en·tial/ (-en´shal) pertaining to the ductus deferens.
Of or relating to the vas deferens.
pertaining to the ductus deferens. to employers that at least try to accommodate the employee. If the informal reasonable accommodation process breaks down, courts will scrutinize scru·ti·nize
tr.v. scru·ti·nized, scru·ti·niz·ing, scru·ti·niz·es
To examine or observe with great care; inspect critically.
scru 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 In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. regarding communications with his attorney on the subject of reasonable accommodations.(8)
The employer had attempted to disqualify To deprive of eligibility or render unfit; to disable or incapacitate.
To be disqualified is to be stripped of legal capacity. A wife would be disqualified as a juror in her husband's trial for murder due to the nature of their relationship. 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 coun·ter·pro·duc·tive
Tending to hinder rather than serve one's purpose: "Violation of the court order would be counterproductive" Philip H. Lee. 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 embarrass /em·bar·rass/ (em-bar´as) to impede the function of; to obstruct.
To interfere with or impede (a bodily function or part). 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 contingency fee Law & medicine An attorney fee based on a percentage of the money recovered in a lawsuit arrangements. Claimants are generally billed at an hourly rate and charged a retainer A contract between attorney and client specifying the nature of the services to be rendered and the cost of the services.
Retainer also denotes the fee that the client pays when employing an attorney to act on her behalf. . Reasonable accommodations generally cannot be quantified and, therefore, do not lend themselves to a contingent fee Payment to an attorney for legal services that depends, or is contingent, upon there being some recovery or award in the case. The payment is then a percentage of the amount recovered—such as 25 percent if the matter is settled, or 30 percent if it proceeds to trial. arrangement. Counsel may also want to consider conducting accommodation negotiations on a "flat fee" basis.
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 Any formal verbal statement made during a trial by a judge to advise and caution the jury on their duty as jurors, on the admissibility or nonadmissibility of evidence, or on the purpose for which any evidence admitted may be considered by them. 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)
(1.) 29 C.F.R. [sections] 1630.2(0)(3) (1998).
(2.) Preface, Equal Employment Law Update, (BNA BNA Bureau of National Affairs, Inc.
BNA Birds of North America
BNA block numbering area (US Census)
BNA British North America
BNA Banco Nacional de Angola (National Bank of Angola) ) 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 cohen
(Hebrew: “priest”) Jewish priest descended from Zadok (a descendant of Aaron), priest at the First Temple of Jerusalem. The biblical priesthood was hereditary and male. , 351 West 24th Street, 9E New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , 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
John Milton Hay (October 8, 1838 – July 1, 1905) was an American statesman, diplomat, author, journalist, and private secretary and assistant to Abraham Lincoln. eds., 1894).
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See also: Garrison , Phelan, Levin-Epstein, Chimes & Richardson in New Haven New Haven, city (1990 pop. 130,474), New Haven co., S Conn., a port of entry where the Quinnipiac and other small rivers enter Long Island Sound; inc. 1784. Firearms and ammunition, clocks and watches, tools, rubber and paper products, and textiles are among the many , Connecticut.