By; Gary C. Norman, Esq.,
CEO and President
Maryland Area Guide Dog Users, Inc.
Vice President and Legal Chair
National Council for Support of Disability Issues
4145 Falls Road
Baltimore MD 21211
Alternative Dispute Resolution for Your Disability:
What You Should Know About Mediation
The Americans with Disabilities Act of 1990 furnishes to persons with disabilities the civil right to equally enter and use the programs, services and goods of "public entities," such as a state agency, and "public places of accommodation," such as a tavern or grocer. In working with a dog guide, a team may encounter discriminatory behavior or exclusion and desire to pursue their legal rights. In pursuing federal and state protections, a team may need to first exhaust an informal process known as Alternative Dispute Resolution (ADR), among whose better - noted models are mediation and arbitration.
a. This is, except for limited exceptions, a confidential process.
b. A third-party neutral, one or more mediators, acts as a non-partial facilitator to assist in resolving a dispute between two or more parties.
c. Being a non-adversarial approach to conflict resolution, the mediator or mediators facilitate communication between the parties, assist them in focusing on the issues of the dispute and generate options.
B. Reasons for Selecting MEDIATION
1. Mediation is:
a. A suitable method when a business or personal relationship exists which the parties wish to retain, but where emotions obstruct a resolution.
b. Where the desired resolution involves innovative components, such as demanding that a hospital place Braille signage in a waiting room.
c. Where the focus is on the future conduct of the parties.
1. Confidential process in which nothing said or discussed can be revealed beyond the disputants and the mediator, except under rare circumstances, where there has been a communication of the potential commission of a crime.
D. FORMAT OF MEDIATION
1. Generally, all mediations have
a. A a joint session
b. An introduction during which the mediator will describe the process of the mediation session.
c. The parties will have an opportunity to present their view of the issue(s).
d. A caucus may occur, where the mediator privately meets with each of the parties to explore facts and issues that may have not been brought forth during the general session.
e. A discussion of options, where the mediator will assist the parties to perform problem solving, searching for options for resolution of the complaint. As there is usually more than one issue and more than one solution, this demands that both parties bring creativity and flexibility to their problem solving.
a. Lawyers are not necessarily required, although parties may bring their lawyers with them to the mediation.
3. Permissible or non-permissible Roles of the mediator are
a. Provide the parties with resources and information and answer questions about the process.
b. Not permitted to furnish legal advice or an interpretation of the law.
E. HOW TO BEST PREPARE FOR ADR – MEDIATION
1. To best prepare, consider:
a. Come to the mediation session with a clear idea of what the issue(s) are and the desired resolutions. Ask yourself, how can I clearly describe my point of view?
b. To the session, bring all papers, documents or reports that may be useful in explaining your view of the facts.
c. Come with an open mind and a willingness to listen to the opposing party and work towards options and a resolution of the complaint. Ask yourself, what would be the best possible outcome? What would the opposing party want as an outcome, and what would they accept?
d. Come to the session with a clear idea of what solutions you desire, and what you are willing to negotiate and not negotiate.
e. Ask yourself what will occur, if a resolution cannot be achieved.
F. Consequences of Mediation
a. If parties at mediation achieve a resolution, this will be recorded by a document called a settlement agreement.
b. The mediator will work with the parties to reflect the terms of the solutions that were agreed-on at the mediation.
c. Often, if a settlement is achieved, this means that one or more of the parties will have to agree to withdraw a complaint.
2. Should a party not comply with the terms of a settlement agreement
a. Generally, the solutions to which the parties agree are not binding. However, this agreement itself can take-on the effects of a contract, giving parties legal rights to sue based on the terms of the under-lying settlement.
b. Additionally, an overarching agency through which a mediation has taken place, such as at a civil rights enforcement office, may have enforcement powers.
G. ADDITIONAL RESOURCES
The US department of Justice refers Title II (public entities) and Title III (public place of accommodation) complaints to mediation, which is coordinated under the auspices of the Key Bridge Foundation. To apply, follow the standard process for filing a complaint and note a desire for mediation.
States typically have a state-level agency, whose staff investigate, litigate, and/or seek to use ADR to resolve disputes and complaints. For example, in Maryland, the Maryland Commission on Human Relations has an ADR program.
In Maryland, Mediation and Conflict Resolution Office (A.K.A., MACRO)
Dispute Resolution Center of Harris County, Mediation Definition, http://www.co.harris.tx.us/DRC/MedDefinition.htm (Visited Dec. 19, 2007)
The hope of the board and officers of MAGDU is that this guide will be of assistance to you and your furry companion as the two of you request entrance to places of public accommodation and/or entities for amusement or for work.