>From the web page
http://www.cardozo.yu.edu/cojcr/guidelines.htm

                    ADA MEDIATION GUIDELINES

The Kukin Program for Conflict Resolution at Benjamin N. Cardozo
  School of Law is the institutional home of the ADA Mediation
                           Guidelines.

    The ADA Mediation Guidelines and an on-going discussion of
    issues related to the Guidelines are posted on the Cardozo
   Online Journal of Conflict Resolution (COJCR), the original
    publisher of the Guidelines, at www.cardozo.yu.edu/cojcr/.
    Mediators, program administrators, mediation consumers and
advocates are encouraged to put the Guidelines into practice and
      participate in on-going collaboration regarding their
    application and development through the discussion group.

  This project has been implemented with the support of the Bell
    Atlantic Foundation and The Center of Independence of the
                  Disabled of New York (CIDNY).

    For more information about the ADA Mediation Guidelines,
  contact: Judith Cohen, Project Coordinator, at (212) 741-3758
          (voice/TTY) or coordinator@adamediation.org.

                          INTRODUCTION

  The ADA Mediation Guidelines for mediation providers are the
  product of a national Work Group convened to develop mediation
    practice Guidelines unique to conflicts arising under the
Americans with Disabilities Act (42 USC Sec.12101-12213) ("ADA")
  and similar laws promoting the eradication of discrimination
                against persons with disabilities.

The ADA Mediation Guidelines were developed between January 1998
    and January 2000 by a Work Group comprised of 12 mediation
  practitioners, trainers and administrators. (See back page for
   the list of Work Group members.) The Guidelines address ADA
 mediation issues in the areas of Program & Case Administration,
  Process, Training, and Ethics. A Draft, and later, the Interim
Standards, were widely distributed for public comment during the
  development period. The final Guidelines could not have been
  developed at all were it not for the tremendous collaboration
      and valuable comments contributed by many mediators,
    stakeholders and advocates. The Work Group expresses its
appreciation to the many people who contributed to this effort.

  The term "ADA mediation," as used in this document, applies to
    programs mediating claims arising under the Americans with
  Disabilities Act and other disability civil rights statutes,
    such as the Rehabilitation Act of 1973, the Fair Housing
  Amendments Act of 1988, and comparable state and local civil
 rights laws. The mediation of special education disputes raises
              issues that are not addressed here.

 The Guidelines provide direction for mediators, administrators,
    funders and consumers of ADA mediation. They also provide
    direction for disability access in any type of mediation
 involving persons with disabilities, such as family, commercial
 or labor mediation. The Guidelines are available to be followed
    voluntarily by individual mediators and mediation provider
    organizations who wish to signal to potential parties and
 mediation participants their familiarity with disability issues
  and their commitment to high quality ADA mediation services.

  In developing the Guidelines, the Work Group reviewed existing
mediator codes of conduct and other relevant documents to ensure
 that the Guidelines were in keeping with already developed work
  in the field. The ADA Mediation Guidelines address only issues
  that are unique to resolving disability-related disputes. The
    Guidelines do not include basic mediation ethics, general
 principles of administering a mediation program, or educational
   information about ADA regulations, compliance or disability
access. Codes and resources that informed the development of the
      Guidelines are available to persons seeking additional
    information on integrating the Guidelines into mediation
  practice. [See " Resources" Appendix 1]. Illustrations of the
 practice implications of certain guidelines marked by asterisks
                   [**] appear in Appendix 2.

  Public policy and legal issues often arise in ADA mediations.
    These Guidelines do not constitute legal advice. Persons
    interested in ADA mediation are encouraged to consult with
 attorneys and legal resources for substantive interpretation of
    the ADA and related disability civil rights statutes and
                          regulations.

  The Work Group wishes to thank the Kukin Program for Conflict
    Resolution at Benjamin N. Cardozo School of Law, under the
  direction of Lela P. Love, for providing an institutional home
 for the ADA Mediation Guidelines. The Cardozo Online Journal of
  Conflict Resolution will maintain a copy of the Guidelines on
   its web site and a link to an on-going discussion of issues
                    related to the Guidelines.

                    ADA MEDIATION GUIDELINES

                            CONTENTS

                          INTRODUCTION

               I. PROGRAM AND CASE ADMINISTRATION

                     A. PROGRAM DEVELOPMENT
                B. DISABILITY ACCESS TO MEDIATION
              C. MEDIATOR RECRUITMENT AND SELECTION
                        D. PARTY CAPACITY
                      E. PARTY PREPAREDNESS
                F. REFERRAL OF CASES TO MEDIATORS

                      II. MEDIATION PROCESS

                      A. MEDIATION APPROACH
                B. OTHER MEDIATION PARTICIPANTS

                     III. MEDIATOR TRAINING

                A. ADA MEDIATOR TRAINING CONTENTS
               B. ADA MEDIATOR TRAINING LOGISTICS
                C. POST-TRAINING/MEDIATOR SUPPORT

                           IV. ETHICS

                     A. MEDIATOR COMPETENCY
                        B. FAIR PROCESS
          C. LEGAL AND DISABILITY-RELATED INFORMATION
                       D. CONFIDENTIALITY

                      APPENDIX 1:  RESOURCES

               APPENDIX 2:  SUPPLEMENTAL EXAMPLES

                 APPENDIX 3:  WORK GROUP MEMBERS

                    ADA MEDIATION GUIDELINES

               I.  PROGRAM AND CASE ADMINISTRATION

  This section of the Guidelines refers to the administration of
    mediation programs and to the administration of cases by
 mediation providers, both mediation provider organizations (any
    entity that manages or administers mediation services) and
                        private mediators.

                      A. PROGRAM DEVELOPMENT

  * Providers, staff and volunteers involved in ADA mediation in
   any capacity should be trained in disability-related issues
       and ADA compliance requirements, according to their
            particular program's needs and structure.
       * Mediation providers should be responsive to their
     constituents. The input of people with disabilities and
        other stakeholders should be considered in program
                  development and evaluation.

                B. DISABILITY ACCESS TO MEDIATION

   Mediation providers have obligations to make their services
  accessible to persons with disabilities. These obligations are
  articulated in the ADA Title III (Public Accommodations) under
    which mediation providers would be considered as "Service
 Establishments," in Title II (Public Service) if they are state
  or local government entities such as publicly funded court or
  community mediation programs, and in Title I (Employment) for
    internal employment dispute resolution programs. Mediation
 provider organizations and private mediators may not charge the
   individual with the disability for any expenses relating to
                 making the session accessible.

  * ADA mediation providers should make all aspects of mediation
   - ranging from training to mediation sessions -- accessible
    to persons with disabilities, including parties and other
    mediation participants, staff, volunteers, and mediators.
    For these purposes, 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. Persons conducting
    intake or case development should notify the mediator of a
    case of any disability accommodation required to enable a
          party's participation in the mediation. **
     * Mediation provider organizations should have in place
  policies and procedures concerning accessibility for persons
    with disabilities. Essential components include procedures
   for requesting a disability accommodation, for grieving the
    denial of accommodations, and a non-discrimination policy
  that includes disability. The policies and procedures should
    be communicated to the parties, to mediation participants,
            to mediators and to staff and volunteers.

              C. MEDIATOR RECRUITMENT AND SELECTION

      * ADA mediation presents complex issues, and mediation
    provider organizations that provide ADA mediator training
    should select mediators who have mediation experience in
                      addition to training.
    * Mediation provider organizations that do not provide ADA
    mediator training should select as mediators only persons
    who have completed advanced ADA Mediation Training as set
       out in Section III of these Guidelines, or who have
                      equivalent knowledge.
      * Provider organizations should have a diverse pool of
      mediators. Diversity recruiting efforts should include
     seeking out qualified mediators who have disabilities.

                        D.  PARTY CAPACITY

  * In order for the mediation process to work, the parties must
     be able to understand the process and the options under
  discussion and to give voluntary and informed consent to any
     agreement reached. Mediators and provider organizations
       therefore should determine whether the parties in a
      mediation have the capacity to do so. In making such
      determinations, neither the mediator nor the provider
      organization should rely solely on a party's medical
     condition or diagnosis. Instead, they should evaluate a
   party's capacity to mediate on a case by case basis, if and
      when a question arises regarding a party's capacity to
   engage in the mediation process and enter into a contract.

            This evaluation should be based on several
           factors. The mediator should ascertain that
              a party understands the nature of the
           mediation process, who the parties are, the
                role of the mediator, the parties'
          relationship to the mediator, and the issues
              at hand. The mediator should determine
            whether the party can assess options and
           make and keep an agreement. An adjudication
              of legal incapacity is not necessarily
            determinative of capacity to mediate. **
            However, a mediation agreement signed by a
            person without legal capacity may require
             co-signing by a surrogate to ensure its
                        enforceability.

            Capacity is a decision-specific concept.
            Capacity to mediate may not be the same as
            capacity to make financial or health care
          decisions, to vote, marry, or drive. A party
           with a judicial determination of incapacity
               may still be able to participate in
           mediation. Conversely, a party without such
           a determination may not have the ability or
                  understanding to participate.

    * If a party appears to have diminished capacity or if a
      party's capacity to mediate is unclear, the provider
     organization or the mediator should determine whether a
    disability is interfering with the capacity to mediate and
        whether an accommodation will enable the party to
  participate effectively. If so, the provider organization or
        the mediator should offer such an accommodation.
  * The provider organization or mediator should also determine
        whether the party can mediate with support. If a
      representative, such as attorney or support person, is
  present or participating, the party with diminished capacity
          remains the decision-maker in any agreement.
  * If, despite support, a party lacks capacity to participate
     in the mediation, mediation should not proceed unless a
      surrogate participates in the process to represent the
    interests of the party and make the mediation decisions in
     place of the party. Surrogates are defined according to
  state law, and might be agents under durable and health care
      powers of attorney, guardians, or family members. The
  surrogate and the person represented by the surrogate should
      be present and participate when possible. The mediator
      should encourage the surrogate to express the party's
               interests, values and preferences.

                      E. PARTY PREPAREDNESS

   * Provider organizations and mediators should encourage the
        parties to become aware of their legal rights and
    responsibilities under the ADA prior to the mediation so
   that the parties participate meaningfully and make informed
                           decisions.
      * While providers may supply parties with educational
          materials, such as booklets on ADA rights and
    responsibilities, this information is not a substitute for
    legal representation. Before the mediation session, and at
    the outset of the session, parties should be advised that
    they may obtain independent legal or other representation.
    Parties in an ADA mediation should also be advised of the
  risks of not being represented by counsel or of not having a
    potential agreement reviewed by counsel. The provider or
         mediator may refer parties to resources to seek
                        representation.

                F. REFERRAL OF CASES TO MEDIATORS

    The provider organization should provide the mediator with
 sufficient information about the case to permit the mediator to
plan and conduct the mediation competently. Such information may
  also be conveyed to the mediator directly by the parties, or
         their representatives, if they are represented.
  Disability-related information will ordinarily be provided by
    the parties, and other appropriate mediation participants
  (particularly representatives and resource persons) during the
    course of the mediation. However, prior knowledge may be
critical to the mediator's effective management of the mediation
process. Prior knowledge may also alert the mediator to the need
  for the participation of a resource person in the session, if
  the parties or their representatives have not already raised
                          this issue.

                      II. MEDIATION PROCESS

               A.  MEDIATION TECHNIQUES OR METHODS

    * These Guidelines do not advocate a particular mediator
    orientation, strategies or techniques, except as those may
                impact disability-related issues.
  * In ADA cases where reasonable accommodations are an issue,
  the joint session provides an opportunity for the parties to
    engage in the "interactive process" (favored by the EEOC,
        courts and commentators) to identify and evaluate
  accommodation alternatives. 1. However, when this process is
    taking place in the context of mediation, it must be clear
  that anything said or done - even as part of the interactive
     process -- will remain confidential and inadmissible as
   evidence in any legal proceeding unless otherwise agreed to
                        by the parties.

                     1.  42 USC 12101-1630.9

                B.  OTHER MEDIATION PARTICIPANTS

  The role of some mediation participants may overlap. However,
 the role of mediation participants should be as clearly defined
                          as possible.

                        * Representatives

          a) The parties may bring a representative of
            their choice to the mediation session. A
            representative is an individual who serves
             as an agent and advocate for the party,
             advising, counseling, or presenting the
            party's views. Unlike a surrogate, who is
             legally authorized to make decisions on
            behalf of the party, a representative does
            not make decisions on the party's behalf.
              The representative may be a disability
               rights advocate, expert, vocational
           rehabilitation counselor, job coach, family
            member, attorney, union representative, or
                          other person.

           b) A party may bring a support person, as a
              representative or in addition to the
              representative, to assist the person
              throughout the mediation process, for
             example by providing emotional or moral
                            support.

             c) Where representation might serve the
          interests of the parties to ensure effective
                  participation and thoughtful
            decision-making, the mediator may suggest
              that the parties (or one party) obtain
                        representation.

            d) The roles of support person, surrogate,
            and representative may vary, depending on
           the circumstances of the parties, a case or
                          a mediation.

             * Neutral experts and resource persons

  Supplementary disability-related information might be critical
 to the resolution of a dispute. The parties may engage experts,
    or with the parties' permission, the mediator may invite a
neutral expert to educate the mediator and the parties about the
        disability and to assist in developing options.
                      * Personal assistants

    Persons with disabilities may be accompanied by a personal
assistant (PA) who is supervised by the person with a disability
and provides physical aid or other assistance. The PA should not
speak on behalf of the person with the disability or assist with
    his/her communication, unless requested to do so by that
                          individual.
                         * Interpreters

 A qualified sign language or oral interpreter has the dual role
 of being a "disability accommodation" for persons who are deaf,
    hard of hearing, or who have speech disabilities, and of
    facilitating communication between these persons and other
    participants in the session. The mediator should allow the
  interpreter to confer with the individual with a disability to
          clarify terms before and during the mediation.

                      III. MEDIATOR TRAINING

                A. ADA MEDIATOR TRAINING CONTENTS

      At a minimum, ADA mediator training should include:
            * Substantive law and procedural issues

           a) ADA or other applicable federal or state
                statutes and/or local ordinances

           b) State and federal regulations and policy
                           statements

             c) Court decisions applying these legal
                           principles

             d) Other related laws (e.g., Family and
                Medical Leave Act of 1993, Workers
               Compensation, Age Discrimination in
           Employment Act, Social Security Disability)

            e) Mediating in a unionized setting (for
                  employment mediation training)

          f) The administrative processes for handling
          disability cases in federal, state and local
           agencies and the courts, where appropriate

           g) Settlement/release and employee benefits
           options (for resolutions where the employee
                    does not return to work)

                     * Disability awareness

            a)  Disability etiquette ** (appropriate
                ways to interact with people with
                disabilities) and terminology **

              b) Addressing one's own biases about
                          disability **

             c) Common disabilities, their impact on
             persons' functioning, and accommodation
                            options

              d)  Planning and running an accessible
                             session

           e)  Disability resources, including sources
             of information and technical assistance

                    * Practical application

           a) Common ADA dispute issues and options in
             the area to be handled by the mediators
            (e.g., employment, public accommodations,
                          and housing)

            b)  Adaptation of mediation techniques to
            ADA mediation and unique circumstances of
              people with particular disabilities

                    c) Ethical considerations

                   d) ADA Mediation Guidelines

                B. ADA MEDIATOR TRAINING LOGISTICS

    * ADA mediator training - for already trained, experienced
    mediators -- should be a minimum of fourteen (14) hours in
   length. The following time guidelines are advisory only, as
  some subject areas may require more time, based on the needs
        of the program, and some areas may be combined.

           a)  Substantive law and procedural issues -
              three hours. However, more time may be
             required, depending on the legal issues
              covered and the extent of prior legal
            training of the trainees. Discussion and
           activities, such as case studies, should be
            included, in addition to lectures. Legal
              issues are also covered throughout the
               entire training through discussion,
           role-plays, and other practical application
                          activities.

              b) Disability awareness - three hours.

            c) Practical application - eight hours. In
            addition to presentation of practical ADA
              mediation skills, this should include
                role-plays, discussion and other
               participatory activities. Role-play
           exercises should be designed to reflect the
             types of disability-related disputes in
            which the trainees will likely be involved
                          as mediators.

      * Training should include at least one opportunity for
   participants to interact personally with a person who has a
                          disability.
  * Each training participant should participate in role-plays
    of ADA disputes, including role-play as a mediator, and to
                  debrief and receive feedback.
      * A trainer skilled in ADA mediation must be present
   throughout the training. The section on substantive law and
    procedural issues may be presented by a non-mediator, and
  the disability awareness section may be presented by persons
     with disabilities who do not have mediation expertise.
  * ADA mediation training manuals should include a copy of the
  laws and regulations applicable to cases that mediators will
            be mediating, a list of national and local
    disability-related resources, and basic information about
      reasonable accommodations and disability etiquette and
                          terminology.
  * Some mediation provider organizations provide ADA mediator
    training and offer trainees who successfully complete the
  training opportunities to mediate. Such organizations should
    require that training participants demonstrate, through an
  evaluated performance, sufficient competency in the areas of
      ADA mediation practice addressed in training, before
     providing mediation services. This may be done after an
    apprenticeship period, but before the mediator conducts an
   unsupervised mediation. ADA mediator training programs that
   do not provide mediation services do not have an obligation
               to evaluate training participants.

                C. POST-TRAINING/MEDIATOR SUPPORT

  * To ensure quality mediation services, mediator feedback and
     ongoing support and skills development are recommended.
   Mediator apprenticeship should include observing actual ADA
    mediation sessions conducted by experienced ADA mediators,
    conducting ADA mediations with, or observed by, a skilled
  ADA mediator, and participating in follow-up debriefing with
       the observing mediator or co-mediator, including an
          evaluation of the apprentice's performance.
  * Mediators need to keep abreast of developments in ADA and in
         the ADA mediation field. ADA mediation provider
    organizations should require that ADA mediators fulfill a
      certain minimal number of continuing education hours
  annually addressing ADA and other disability-related topics.
  ADA mediation continuing education may include non-mediation
   areas such as disability-related public hearings, workshops
   provided by Independent Living Centers and other disability
  organizations, or attending workshops on disability issues.

                           IV. ETHICS

  The following ethical guidelines are minimum guidelines unique
    to ADA mediation that mediation provider organizations and
  mediators should follow. These Guidelines should be considered
 in conjunction with basic ethical standards of mediation, which
                     are not addressed here.

                      A. MEDIATOR COMPETENCY

  * Mediators should have knowledge of disabilities, disability
    access, and disability law. This includes being aware of
    general ADA case law developments and guidance issued by
       regulatory agencies. The ADA mediator needs to have
    information about the status of the law to work with the
    parties effectively in exploring the range of settlement
     options, and to know if the parties are making informed
              decisions and enforceable agreements.
  * ADA mediators should not accept cases for which they are not
      qualified. Where particular background information is
   required for ADA mediations, mediators should acquire legal
        or disability-related information in order to have
      sufficient knowledge to mediate the case competently.

                        B.  FAIR PROCESS

   * The mediator should encourage parties to seek information
    and advice from relevant sources during the course of the
        mediation. Agreements should be based on a clear
      understanding of the issues, options and facts of the
    particular case. Agreements should never be coerced by the
     mediator or by the mediation provider organization. The
    mediator should make every effort to ascertain whether the
   parties have a sufficient understanding of their rights and
    obligations under the ADA, and the implications of any (a)
     agreement that they reach, or (b) decision to reject an
                      offer of settlement.
    * Where the mediator believes that a party(ies) does not
  understand the implications of a contemplated agreement, the
  mediator should encourage the parties to consult appropriate
               sources of information and advice.
  * The mediator should terminate the mediation if s/he believes
      that the parties' agreement would be inconsistent with
    principles of mediation ethics (such as those listed here
  and those articulated in the standards of practice listed in
                          Appendix I).
  * The mediator should ask whether the parties have considered
    the impact of parties who are not at the table, such as a
          labor union, on the enforceability, successful
         implementation or durability of the agreement.

           C. LEGAL AND DISABILITY-RELATED INFORMATION

     ADA Mediators should use their knowledge of the law and
   disability issues to assess when unrepresented parties need
  legal or other counsel, or when the participation of an expert
 or resource person would be advisable.  Mediators may encourage
one or more of the parties to consider obtaining such assistance
 where needed.  However, such encouragement should be given in a
manner that protects the mediation process.   Discussing matters
  of this kind in a private caucus session of the mediation is
        often preferable to doing so in a joint session.

                        D. CONFIDENTIALITY

   * Mediators should maintain confidentiality with respect to
   disability-related information in arranging access and when
       conducting the mediation. While the person with the
     disability may have disclosed his/her disability, there
    still may be information that the person does not wish to
    reveal, such as the diagnosis or the severity of his/her
    limitations or health problems. Where a mediator believes
      that disclosure of such information would enhance the
    mediation process or would otherwise be beneficial to the
  parties, the mediator should invite disclosure by the person
      with a disability during private caucus, but may not
    disclose the information without the person's permission.
    * If a mediator withdraws from a case because the mediator
  believes that one or more of the parties does not understand
       the implications of the agreement or the terms of a
  potential agreement, or for any other reason, s/he should do
     so in a manner that protects the confidentiality of the
     parties' communications in the mediation to the fullest
                    extent legally possible.

Note: These Guidelines are not intended to be used in litigation
  involving the practice of mediation -- either as evidence of a
    standard of due care for ADA mediators or as a measure of
     "reasonable accommodation" for purposes of establishing
  liability on the part of mediators. Instead, these Guidelines
  represent a set of aspirational principles and practices that
    the Work Group recommends to ADA mediators and mediation
  providers. The Work Group is not a governmental organization.
      Therefore, its views on the matters addressed in these
   Guidelines do not have the force of law in any jurisdiction
  unless they are adopted by rule or statute by a governmental
                              body.

                      Appendix 1 RESOURCES

 The following is a list of some of the codes and protocols that
  were reviewed by the drafters of the ADA Mediation Guidelines,
  along with the web sites where they can be located, and phone
  number for obtaining copies. These codes and protocols include
  basic mediation standards that the ADA Mediation Guidelines do
    not address. There are numerous other codes. Providers and
  mediators should be aware of developments, including codes of
    the ethics and mediation practice standards, in their own
                          jurisdictions.

    "A Due Process Protocol for Mediation and Arbitration of
 Statutory Disputes Arising Out of the Employment Relationship,"
                             5/9/95
      www.adr.org/ (under "Protocol") 212-716-3981 American
                  Arbitration Association (AAA)

    "Ethical Guidelines of Professional Responsibility," 6/86
  www.spidr.org 202-667-9700 Society of Professionals in Dispute
                        Resolution (SPIDR)

        "Model Standards of Conduct for Mediators," 1994
          American Arbitration Association/American Bar
    Association/Society of Professionals in Dispute Resolution
  www.adr.org (Under "Rules & Procedures, Ethics & Guidelines")
                        212-716-3981 AAA

    "Guidelines for Voluntary Mediation Programs Instituted by
   Agencies Charged with Enforcing Workplace Rights," 1/24/98
                www.spidr.org 202-667-9700 SPIDR

              "Quality Assurances Statement," 6/96
  www.nafcm.org 202-667-9700 National Association for Community
                        Mediation (NAFCM)

                  Federal Enforcement Agencies

  Equal Employment Opportunity Commission (EEOC) www.eeoc.gov
    800-669-EEOC (Voice) 800-800-3302 (TTY for deaf and speech
                    impaired telephone users)
  Documents on ADA employment issues, including policy guidance
              800-669-4000 (V) 800-669-6820 (TTY)
                Guidance on ADA employment issues

    Access Board www.access-board.gov/ 800-USA-ABLE (V/TTY)
   Technical assistance and documents on the ADA Accessibility
     Guidelines and Architectural Barriers Act, and enforces
                    Architectural Barriers Act

          Department of Justice, Civil Rights Division
                www.usdoj.gov/crt/ada/adahom1.htm
              800-514-0301 (V) 800-514-0383 (TTY)
  ADA information, documents, and technical assistance (Titles
 II/public service and III/public accommodations, Section 504 of
        the Rehabilitation Act) Issues quarterly reports.

  U.S. Department of Transportation www.fta.dot.gov 888-446-4511
                           Voice only
  Enforces ADA provisions governing mass transportation systems
                          and services

   Department of Housing and Urban Development, Office of Fair
  Housing and Equal Opportunity 800-343-3442 V 800-483-2209 TTY
              Enforces disability rights in housing

      Federal Communications Commission www.fcc.gov/dtfl/
            Documents 202-857-3800 V 202-293-8810 TTY
            Questions 202-418-1898 V 202-418-2224 TTY

Note: These web sites have links to other disability-related web
                              sites.

                   Other Disability Resources

    Job Accommodations Network (JAN) 800-ADA-WORK (Voice/TTY)
          http://janweb.icdi.wvu.edu/english/homeus.htm
  A service of the President's Committee on Employment of People
                       with Disabilities
  Information and guidance on reasonable accommodations in the
                            work place

ADA Disability and Business Technical Assistance Center (DBTAC)
               www.adata.org 800-949-4232 (V/TTY)
 Technical assistance on rights & responsibilities under the ADA

   The American Bar Association (ABA) Commission on Mental and
                    Physical Disability Law
  202-662-1570 www.abanet.org/disability Directory of attorneys
                  specializing in disability law

  The ABA Commission on Mental and Physical Disability Law and
    commercial enterprises such as BNA, LRP, Commerce Clearing
    House, Thompson, and Prentice Hall publish disability law
  reporters, which are a good source for keeping up-to-date with
                            case law.

                  Disability Awareness Materials

    "Targeting Disability Needs: A Guide to the Americans with
  Disabilities Act for Dispute Resolution Programs" published by
    the American Bar Association, the American Association of
     Retired Persons, and the National Institute for Dispute
  Resolution. Order through The American Bar Association (ABA)
  Commission on Mental and Physical Disability Law 202-662-1570
                    www.abanet.org/disability

   "Disability Etiquette: Tips on Interacting with People with
      Disabilities" published by Eastern Paralyzed Veterans
    Association. Order through EPVA hotline: 800-444-0120 or
                     publications@epva.org.

  "Making Dispute Resolution Sessions Accessible to People with
  Disabilities" by Judy Cohen, SPIDR News, Spring 1997. (Society
  for Professionals in Dispute Resolution, 202-667-9700, and at
                   www.mediate.com/articles.)

                Appendix 2 SUPPLEMENTAL EXAMPLES
                * PROGRAM AND CASE ADMINISTRATION

                B. DISABILITY ACCESS TO MEDIATION

            * ADA mediation providers should make all
               aspects of mediation - ranging from
                training to mediation sessions --
            accessible to persons with disabilities,
              including parties and other mediation
              participants, staff, volunteers, and
            mediators. .Persons conducting intake or
                case development should notify the
              mediator of a case of any disability
                accommodation required to enable a
             party's participation in the mediation.
                      (See example below)

 Inaccessible case scenario: A person who has self-identified as
having a traumatic brain injury (TBI) has trouble sequencing and
  has poor short-term memory. She is unable to keep track of the
 proceedings, repeats herself, can't organize her responses, and
  asks questions that have already been answered. The mediator
 believes that she's being disruptive, not paying attention, and
    not participating in good faith. The process breaks down.

     Same scenario, with mediator who uses effective process
  adaptations: Having been informed that the party has TBI, the
   mediator - before the session - inquires as to the person's
  needs and limitations in order to make the session accessible.
  Based on the person's input, the mediator periodically reviews
  what has been said in the session, and works with a flip chart
  so that the person with TBI can follow and participate in the
   proceedings. (Alternately, if the mediator was not informed
before the session, she inquires about the person's needs during
 a private caucus, even if she is knowledgeable about TBI, as it
                   affects people differently.

                        D. PARTY CAPACITY

            * ". An adjudication of legal incapacity
               is not necessarily determinative of
                      capacity to mediate."

    For example, a resident of a nursing home who is legally
  incapacitated may have disputes with a roommate about space or
    TV, or with staff about eating or dressing schedules. This
    person may have the capacity to participate in mediation
    regarding these issues. Also, persons may be under limited
    guardianships. For instance a person could have a guardian
  (sometimes called a conservator) for financial decisions, but
  not for health care or personal decisions, and so this person
  could participate in a mediation about health care treatment.

                      * MEDIATOR TRAINING

      Note: Disability etiquette is the "cultural" aspect of
    interacting with persons who have disabilities. Observing
disability etiquette not only makes the person with a disability
  more comfortable, but also contributes to the accessibility of
                          the process.

                A. ADA MEDIATOR TRAINING CONTENTS

                     * Disability awareness

                    a)  Disability etiquette

 Scenario without disability etiquette: A person who is blind is
    a party to a mediation. The mediator starts the session by
  saying the names of the parties, their advocates and the other
 mediation participants, and gesturing towards each as s/he says
    their name. The person who is blind, feeling disempowered
  because this introduction was not accessible to him/her, feels
     uncomfortable. S/he spends the session wondering who is
  speaking, and has trouble following the course of the session.

Same scenario, with the mediator using disability etiquette: The
  mediator starts off the session by going around the table and
   having each person, including observers, say their name and
 their role in the mediation. The person who is blind is able to
  identify who is speaking by their voice and location. S/he has
        equal access to participate fully in the session.

 Scenario without disability etiquette: There is a sign language
  interpreter at a mediation because one of the parties is deaf.
 The mediator starts the session without mentioning the presence
   of the interpreter (s/he wants to be sensitive and not call
  attention to the deaf person). The interpreter voices for the
deaf person, and the hearing persons all look at the interpreter
  as s/he speaks. When they have comments or questions for the
  deaf person, they also address these to the interpreter. As a
  result, the deaf person feels ignored and does not experience
  himself/herself as an equal participant in the session. S/he
  finally gives up and says less and less, since no one seems to
              be listening  or talking to him/her.

  Same scenario, with mediator using disability etiquette: The
mediator opens the session by explaining that the interpreter is
    there to facilitate communication between deaf and hearing
participants, and that the mediation participants should address
  each other and not the interpreter. Result: the deaf person is
  able to communicate on an equal basis with the other mediation
                          participants.

                      A. TRAINING CONTENTS

                      * Disability awareness
                   a) Appropriate terminology

  Scenario with inappropriate terminology: A person who uses a
wheelchair is a party to a mediation. The mediator refers to the
    party as being "wheelchair bound." The wheelchair user is
offended by the term, and feels that the mediator must be on the
    other party's side or at least cannot possibly understand
                      his/her perspective.

 Same scenario, with mediator using appropriate terminology: The
 mediator refers to the party as "using a wheelchair." This term
  may strike the wheelchair user as neutral, or may lead him/her
to believe that the mediator will understand the issues at hand.

                      A. TRAINING CONTENTS

                      * Disability awareness
              b) Addressing one's own biases about
                           disability

 Scenario, where mediator is not aware of his/her own biases: An
     employee with major depression has been disciplined for
  excessive tardiness. The mediator assumes that the employee is
ashamed of having depression, and carefully avoids discussing it
  with him/her -- either in arranging the session or during it.
    The session is scheduled for 8:00 a.m. When the mediator
confirms the date and time with the employee, the employee says,
    "Oh well, okay." The mediator takes that as a "yes." The
  employee arrives 30 minutes late for the mediation and looks
disheveled. The supervisor is exasperated, saying, "See? This is
  what I have to put up with every day." The employee seems 'out
  of it' and participates less and less as the session goes on.
 The mediator is beginning to wonder how s/he ever held a job in
  the first place, and unconsciously discounts the few remarks
 that the employee makes. In private caucus, the mediator starts
   by raising questions about the possible consequences of the
 employee's tardiness. The employee looks as though s/he's about
   to cry, then silently gets up and leaves the room, then the
                            premises.

 Same scenario, but with a mediator who is informed and unbiased
    about psychiatric disabilities: The mediator is aware that
  passivity can be a barrier to full participation in mediation
    for people who are depressed, and knows that psychiatric
  medications can have side effects that impact on the person's
functioning. After confirming the time of the mediation with the
  employee, the mediator notices the employee's hesitancy, and
    adds, "You know, I have been informed that you have major
depression. I wanted to be sure to talk to you about that before
  the session. Is there anything you want me to know about how
  this condition, or how any treatment you're receiving for it
  might be affecting you?" The employee is relieved to have this
  opening and speaks for several minutes about how sedated s/he
feels in the morning due to his/her anti-depressant medications,
  and how much energy it has taken to get to work at all, albeit
  late. After listening, the mediator asks again if the employee
   is comfortable with the proposed schedule, or would like to
propose another time. The mediation is scheduled for 11:00 a.m.,
   when the employee is most alert and able to concentrate and
                          participate.

      Appendix 3 ADA MEDIATION GUIDELINES WORK GROUP MEMBERS

    Melissa Brodrick, Board Member, National Association for
                   Community Mediation (NAFCM)
                           Belmont, MA

Judith Cohen, Mediator, and Executive Director, Access Resources
        (ADA Mediation Guidelines Work Group Coordinator)
                          New York, NY

    Samuel H. DeShazer, Planning Committee Member & Faculty,
   Institute for ADA Mediation (Hall, Render, Killian, Heath &
                           Lyman, PSC)
                          Louisville, KY

                  Art Finkle, New Jersey SPIDR
 (Alternative Dispute Resolution Director, New Jersey Department
                          of Personnel
  and Associate Professor, Rider University, Graduate Program of
                  Education and Human Services)
                           Trenton, NJ

      Winnie M. Hargis, Private Mediator and ADA Consultant
                            Dalton, GA

    David Hoffman, American Bar Association Section of Dispute
                            Resolution
                         (Hill & Barlow)
                            Boston, MA

      Laura L. Mancuso, Independent Consultant and Mediator
                            Goleta, CA

  Kathryn McCarty, American Bar Association Section of Dispute
                            Resolution
                   (Co-President, ADR Vantage)
                          Washington, DC

 Alice Norman, Mediator/Civil Rights & Accessibility Specialist,
                       US Dept of Interior
                            Boise, ID

    Elizabeth Plapinger, CPR Institute for Dispute Resolution
                            (Advisor)
                          New York, NY

    Anne B. Thomas, Director of EEO, University of New Mexico
                         Albuquerque, NM

      Doug Van Epps, Director, Office of Dispute Resolution,
   Michigan Supreme Court, Michigan State Court Administrative
                              Office
                           Lansing, MI

   Note: Work Group members who represent organizations listed
   above functioned as liaisons.  Their participation does not
     indicate organizational endorsement of the Guidelines.

  For an ongoing discussion about the ADA Mediation Guidelines,
 visit the ADA Mediation Website at: www.adamediation.org/forum.

 For an online version of the Guidelines, with links to statutes
    and other resources, visit the Cardozo Online Journal of
Conflict Resolution at: www.cardozo.yu.edu/cojcr/guidelines.htm.

Reproduction and Distribution of the ADA Mediation Guidelines is
                           encouraged.


                  Comments: cojcr@ymail.yu.edu

Last update: 05/11/00.

Copyright (c) 1999, Yeshiva University

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