Practice Standards For ADA Mediators

Preamble

The following Standards of Conduct for ADA Mediation are intended to provide guidance to mediators. These guidelines can be used to mediate all ADA title I, II, and III complaints. We recommend that mediators consult the SPIDR “Model Standards of Conduct for Mediators” as the generic guidelines for mediation practice. These Guidelines may be obtained directly from the Society of Professionals in Dispute Resolution. The following guidelines relate to specific situations that arise in the mediation of complaints involving implementation of the ADA. They may be obtained directly from the Center for Mediation, Key Bridge Foundation.

Mediators must uphold the highest standards of practice. Not only are mediators expected to familiarize themselves with the SPIDR “Model Standards of Conduct for Mediators” they should familiarize themselves with any and all standards of conduct for mediators. Some mediators may have standards of practice for mediators in the particular jurisdictions in which they practice that they also must follow.

1. The role of the mediator is to facilitate discussions between the parties to resolve disputes about the implementation of the ADA.

Comments: In facilitating the discussion between the parties, whether in an employment or public accommodation case, the mediator should be aware of barriers to effective communication.

A mediator should assess if auxiliary aids are needed prior to the mediation. The most direct method of ascertaining what auxiliary aids are needed is by asking the complainant.
Barriers to communication often come in the form of preconceived ideas that the mediator might have about disabilities as well as opinions of the parties about each other.
A mediator should assess the level of misunderstanding between the parties in a manner appropriate for mediators and the mediation process and continue to check whether the parties understand one another.
Mediators have a responsibility to educate not only themselves but also parties about disabilities as they relate to the complaint, the mediation process, or other matters as appropriate.

2. Mediating complaints involving the ADA must address the role of law in the mediation process.

Comments: When parties meet in mediation they are not negotiating over whether the ADA should be implemented.

Even if a respondent to a complaint has a defense against the complaint, e.g., undue burden, the responsibility to look for alternative means to comply with the law is present.
A mediator helps parties negotiate over how the ADA will be implemented not whether it will be implemented.
In general, the mediator is not to stand in the way of parties voluntarily coming to an agreement. A mediator’s participation in a process that results in noncompliance with the ADA raises serious ethical issues for the mediator. Noncompliance can take the form of a respondent paying a party to resolve the complaint rather than eliminating discrimination. (Eliminating discrimination through providing reasonable accommodations, the provision of auxiliary aids, modifying a policy, or removing barriers.) In such cases, mediators must recuse themselves from the mediation.

3. Mediators have an obligation to state unequivocally what a party can expect from mediation.

Comments: Mediation for many participants is a new experience. Misunderstanding about what is possible in mediation is problematic and often results in failure of the parties to reach a resolution of the complaint or dissatisfaction with mediation or the mediator. Mediation parties have a right to be fully informed as consumers about the process that they are going to use to resolve their disagreement. Mediators should clearly state, as many times as necessary, appropriate expectations for mediation.

A mediator does not make decisions for the parties.
A mediator is not an advocate for either side.
Consensus between the parties about what issues are to be considered in mediation is required for mediation to proceed.
Each party must be an active participant. The mediation will not be successful if a party is passive and expects the mediator to do all the work.
Mediators have knowledge of the ADA but should not put themselves out as experts. Parties should always be encouraged to seek expert advice from advocates or other appropriate persons.
Mediators should have materials in accessible formats for the parties that explain the process of mediation to avoid unrealistic expectations

4. Mediators must be impartial.

Comments: A mediator must not do or say anything that would give either party the impression that they are biased.

Each party has a right to be represented by advocates to represent their interests.
A mediator should ensure that each party treats one another with mutual respect avoiding stereotypical and inappropriate comments.
Mediators must recuse themselves from mediation if any question that arises about their impartiality, including conflicts of interest, or competence cannot be resolved.

5. Mediators must ensure that the parties are fully informed about the law prior to making a decision about how to resolve the complaint.

Comments: Mediators should not give legal advice. If a mediator is unsure about whether a party will interpret legal information as legal advice, the mediation should find another way to ensure that parties are informed about the law. To help the parties get informed about the law, mediators can use a number of techniques.

A mediator is obligated to do all that is necessary to ensure that each party to the mediation has an opportunity to be informed about the ADA.
Mediators can provide legal information through available publications.
Mediators can facilitate having parties represented in the mediation by advocates.
Parties can receive materials prior to the mediation.
Mediators are obligated to represent accurate information about the law.

6. Each party in mediation should have access to advocates to represent their interests.

Comments: To ensure fairness and protection of rights, mediators must assess whether an imbalance of power resulting from an inability to state ones’ interests will result in an unfair agreement.

Each party has a right to have legal representation throughout the mediation process.
Mediators should help parties find advocates to represent them in mediation.

7. Mediators are expected to refer parties to outside resources when necessary so that the mediation is appropriate for the needs of all parties in resolving an ADA complaint.

Comments: Questions may arise before and during mediation that require consultation and referral to outside resources.

Mediators are public accommodations and thus their services must be accessible to all mediation participants.
Mediators must develop a list of resources that can be used to provide information about the ADA, including information about auxiliary aids and structural barrier removal.
Information about accessible locations for mediations is necessary if a mediator does not have an accessible office.
A list of community advocacy groups and advocates should be developed to be used when a party to the mediation requests the help of an advocate or other community resource.
The mediation should be held in a neutral location. If parties request that the mediation be held in the location identified in the complaint, the mediator must ascertain whether or not this is appropriate.

8. Rules for the mediation are necessary to inform the parties of not only the mediator’s responsibilities but also their own responsibilities.

Comments: Mediators should recognize the importance of rules in the parties’ understanding of what mediation is.

Mediators should be certain before proceeding with mediation that parties understand the rules and have had an opportunity to ask questions about them.
Parties must “buy into” the rules before a mediator can expect their full participation.
The mediation rules help structure the mediation to ensure that it meets the expectations of the parties for a fair and impartial process.
Mediators should refer to the rules when a question arises with respect to the process of mediation.

9. Mediators should respect the principle of party self-determination.

Comments: A mediator should be committed to facilitating the self-determination of the parties.

Mediation is not the same as arbitration or a settlement negotiation.
Mediators are expected to be facilitative of, and not determinative, with respect to mediation outcomes.
Solutions to a disagreement about the implementation of the ADA should always represent the interests of the parties and not the mediator.
Mediators should avoid statements that would preempt self-determination.

10. Mediation rules apply whether a mediator is conducting a face-to-face mediation or a telephonic mediation.

Comments: Sometimes, a mediator must conduct mediation with a conference call.

Parties to the mediation are expected to sign an agreement to mediate form and have the opportunity to have the rules explained to them prior to the mediation.
Before conducting the mediation, the mediator must have in hand a copy of the agreement to mediate signed by all parties to the mediation.

11. Mediators will enforce strict confidentiality with respect to the mediation process.

Comments: Mediators must ensure that the parties understand the limits of what they can say to the public once they have agreed to mediate.

For a party to go to the media to speak about the mediation without the approval of the other parties is a violation of the confidentiality provisions of the rules of mediation.

12. Mediators have an obligation to work diligently to bring finality to an ADA implementation matter.

Comments: ADA mediation cases are complex and often involve a considerable amount of time to arrange the mediation and implement the agreement.

Mediators should demonstrate an awareness of this complexity in the agreements they draft.
Questions about the competency and seriousness of a mediator are raised when delay in a case is attributable to the mediator and not to the exigencies of the case.

13. Mediators have an obligation to continue to educate themselves about the ADA and other matters that will make them more effective and competent mediators.

Comments: Mediators should follow the directives of dispute resolution professional organizations that encourage a certain number of continuing education units every year.

Continuing education for mediators should include additional training in the ADA, and mediation training that will improve mediation skills.
Mediators should take advantage of any workshops dealing specifically with ADA mediation.
Resources, e.g., pamphlets, fact sheets, about the law and its place in ADA mediation should be available for mediators to share with clients.