Introduction
The Americans with Disabilities Act (ADA) supports the use of
alternative dispute resolution (ADR) as a quick and fair method for settling
complaints without going to court. Section 513 of the ADA, 42 U.S.C.
¤12212, states: “Where appropriate and to the extent authorized by
law, the use of alternative means of dispute resolution, including settlement,
negotiations, conciliation, facilitation, mediation, fact finding, mini-trials,
and arbitration, is encouraged to resolve disputes arising under this
Act.” Regulatory language reinforces this message.
ADR is a non-judicial means of settling ADA disputes outside of
the courtroom, avoiding costly and time-consuming litigation after a complaint
or dispute arises. The use of ADR mechanisms is intended to supplement, not
supplant, other enforcement mechanisms available under the ADA. Both employers
and employees can look to ADR as a “good sense” way to find a common
ground. ADR offers both parties the classic “win-win” scenario, often
resulting in creative and collaborative solutions. Two of the ADA’s
provisions, “reasonable accommodation” and “readily
achievable,” have often been successfully resolved through mediation and
other ADR conflict-resolution strategies.
In order to help implement the ADR provision, the U.S. Department
of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC)
included dispute resolution as a major component of their original national ADA
training for disability advocates. Since then, the DOJ has continued to fund
ADA training projects for community and professional mediators, and both the
DOJ and the EEOC refer cases for mediation.
Major Examples of ADR Techniques
The following are four commonly used ADR techniques:
- Mediation involves the use of a trained
facilitator, known as a mediator, to assist the disputing parties resolve their
differences informally by helping them to achieve a mutually acceptable
agreement.
- Arbitration utilizes a neutral third party to
resolve a dispute after hearing arguments and reviewing evidence from both
parties.
- Conciliation uses a neutral third party to help
resolve disputes by improving communications, lowering tensions and identifying
issues and potential solutions by shuttling information between the disputing
parties.
- An ombudsman strategy investigates and expedites
complaints, helping either of the parties settle a dispute or proposing changes
to make the system (or employer, government agency, business, etc.) more
responsive to the needs of the complainant.
Detailed information on two ADR techniques commonly used in
resolving ADA issues appears below.
Facts About Mediation
The EEOC defines mediation as a problem-solving process that
allows the parties to develop their own solutions through dialogue. Mediation
is an informal process whereby a neutral third party assists the opposing
parties reach a voluntary resolution of an employment discrimination charge.
The decision to use mediation is completely voluntary for the charging party
and the employer. Mediation gives the parties the opportunity to discuss the
issues raised in the charge, clear up misunderstandings, determine the
underlying interests or concerns, find areas of agreement and, ultimately, to
incorporate those areas of agreements into resolutions. A mediator does not
resolve the charge or impose a decision on the parties. Instead, the mediator
helps the parties to agree on a mutually acceptable resolution. The mediation
process is strictly confidential.
Advantages of Using Mediation
- Mediation often saves time and money.
- Mediation is a confidential process.
- Settlement agreements secured during mediation do not
constitute an admission by the employer of any violation of laws enforced by
the EEOC.
- Mediation helps maintain relationships between the parties.
- Mediation strives to treat both parities in an equitable and
fair manner.
How Do I Find An ADA Trained Mediator?
Mediation is offered by the EEOC, as well as other trained
mediators and community dispute resolution organizations. In 1991, the EEOC
contracted with the Center for Dispute Settlement to conduct pilot mediation
programs in four field offices (Philadelphia, New Orleans, Houston and the
Washington, DC field office). An evaluation of the pilot programs indicated
that mediation was a viable alternative to the traditional investigatory
methods employed by the Commission. Congress funded expansion of EEOC’s
mediation program in October of 1996. By the end of Fiscal Year 1997, each EEOC
district office had a mediation program in place, supplementing its internal
mediation staff with pro bono and contracted mediation services available
within its jurisdiction.
Facts About Arbitration
Arbitration is a form of alternate dispute resolution commonly
used in labor cases. In actuality, it is a private court in which the disputing
parties agree to be bound by the decision of an arbitrator (neutral person) who
is familiar with the issues being disputed. There can be no arbitration unless
both sides agree to use this method. The agreement may be worked out in a labor
contract or in a private contract long before a dispute starts. However, even
if parties have never signed such an agreement, they may decide to arbitrate
after a dispute arises. Once an arbitrator is selected by the parties, the case
is scheduled and heard. There is no discovery in most cases. The arbitrator
will usually dispense with evidentiary rules and will hear brief statements
from each side at the beginning of the case. The parties then will present
their cases. There is direct- and cross-examination as in court, but without
formal rules of evidence and without many objections. The arbitrator usually
will accept all evidence and will place whatever value on it he or she elects.
After the hearing, the parties may agree to a “bench decision” where
the arbitrator simply announces the result with or without reasons. If the
parties do not ask for a bench decision, the arbitrator will write a decision
with his or her reasoning.
Advantages of Using Arbitration
- Arbitration is private.
- Arbitration is nearly always faster than court cases.
- The parties participate in the selection of an arbitrator.
Additional Information
Contact the EEOC’s Web site at: <
www.eeoc.gov
>, or the nearest EEOC field office, 800-669-4000 (voice) or 800-669-6820
(TTY).
July 2000 |
