CADRE Resources
The three-year process of developing the ADA Mediation Guidelines, housed at the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, saw a tremendous collaboration with mediators, stakeholders and advocates.
The Guidelines were issued in February 2000 by a national Work Group of twelve mediation practitioners, trainers and administrators [full list available in the Guidelines publication]. This group convened to develop mediation practice guidelines unique to conflicts arising under the Americans with Disabilities Act and similar laws promoting the eradication of discrimination against persons with disabilities. As the Work Group intended, the collaborative process that created the Guidelines has continued in the intervening years. This article addresses some of the resulting developments, the most significant of which have been in the areas of accommodation and mediation capacity, and the author's observations and reflections.
Disability Access to Mediation
Since the ADA's passage in 1990, courts have increasingly narrowed the definition of disability. Many persons who, in the past, were considered to have disabilities no longer meet the legal definition of disabled. Persons with asthma, diabetes, learning disabilities or stress-related conditions may not be legally entitled to a disability accommodation in mediation. Yet these persons may need good indoor air quality, regular breaks, snacks on the table, use of easel and paper to stay on track, or other accommodations to be able to fully participate and exercise self-determination.
In the Guidelines, "access to the process" is addressed explicitly as an accommodation issue, and implicitly as a basic mediator ethics issue of self-determination. The Work Group's thinking was that mediators already had the responsibility to do what they could to make the process accessible to any participant, regardless of the reason for the party's limitation. To clarify that the mediator's obligation to accommodate is an ethical issue, the Guidelines state that in deciding whether to provide accommodations, "the broadest definition of disability should be applied, including chronic conditions, episodic symptoms and temporary disabilities. This is in keeping with generally accepted mediation principles that the parties be able to participate fully in the process." The recognition of the breadth of the mediator's obligation to accommodate bridged the gap for the Work Group between mediating with persons with a disability as defined by law or whose impairments don't rise to that level and to those persons with no impairments.
The EEOC, in an audio conference sponsored by the Thompson Publishing Group, has indicated that employers should consider offering accommodations whether or not an employee has a legally recognized disability [www.thompson.com/libraries ]. Naomi Levin of the EEOC noted that such liberal accommodation policies improve morale and increase productivity. The same benefit is realized in mediation. Parties participate most effectively in an accepting and accessible environment. Accommodating, even if the impairment does not rise to the level of disability under the law, makes for a quality mediation process.
There may be a host of non-disability-related reasons why a person - with or without a disability -- may need assistance to gain access to the mediation process (e.g., location of the session, starting time, child care issues, and language barriers, to name a few), a disability-related obstacle being just one potential area for "accommodation."
Obstacles to full participation in mediation can be addressed and accommodated by talking with the affected party. This developing practice needs to be expanded to include explicit efforts to meet the needs of any mediation party who face
