Resolving Ada Disputes Without Litigation
This article explains: a) What Mediation means, b) How you can use mediation to resolve ADA disputes without costly litigation, and c) Where to call for getting additional information.
What is Mediation?
Mediation is a method of dispute resolution used as an alternative to litigation. Mediation is an informal, voluntary, and confidential process where an impartial third party (the Mediator) helps disputing parties find mutually satisfactory solutions to their differences. Mediation provides a comfortable environment for the parties to air their differences and reach a mutually agreeable resolution. Mediation can sometimes resolve disputes more quickly and satisfactorily than a formal investigation and litigation.
What does mediation involve?
Mediation involves meetings between the disputing parties and the mediator. Mediation proceedings are confidential. It may also involve private sessions between individual parties and the mediator.
Do mediators make a decision or ruling?
Mediators are not judges. They do not decide who is right or wrong, or tell parties what to do. Their role is to manage the process through which parties resolve their conflict, not to decide how the conflict should be resolved. They do this by assuring the fairness of the mediation process, facilitating communication, and maintaining the balance of power between parties. A successful mediation results in a binding agreement between parties.
How does the Department of Justice Mediation Program work?
A person who feels discriminated against under the ADA Title III (Privately-owned Places of Public Accommodation) may file a complaint with the U.S. Department of Justice or file a complaint using an attorney. If the case is filed with the Department of Justice, the Department of Justice will then determine if the case is appropriate for mediation. In this event, the Department of Justice will refer the case to the Key Bridge Foundation in Washington D.C. The Key Bridge Foundation will contact both the person filing the complaint as well as the entity against whom the complaint is filed, to determine if mediation is an acceptable option. If both parties agree, the Key Bridge Foundation will arrange for a local mediator. The mediator will arrange the logistics with both parties and proceed with the mediation.
Who pays for the cost of mediation?
If the case is referred by the Department of Justice, the costs are borne by the Department of Justice, through a contract with the Key Bridge Foundation. This may include the mediator's time, as well as other expenses such as Sign language Interpreters, Braille or other alternate formats.
What is the Key Bridge Foundation and who are the "Local mediators"?
The Key Bridge Foundation is a private, non-profit, 501 (C 3) agency. There are many other agencies which offer mediation services and training for ADA cases; however, the Key Bridge Foundation is the only agency with a contract to implement the Department of Justice's ADA Mediation program.
The "local mediators" are experienced mediators in the State of Hawaii, having prior experience mediating other types of cases (landlord-tenant, domestic, employment, etc.) who have been trained by the Key Bridge Foundation to handle the unique aspects of ADA cases involving persons with disabilities. Approximately 28 local mediators statewide were trained by the Key Bridge Foundation on May 7, 1999. A list of mediators can be obtained for the Key Bridge Foundation or any of the agencies listed below.
How are ADA mediation cases different from other disputes?
ADA complaints may be different because they involve a person's civil rights. Resolving an ADA complaint by mediation must ensure that the agreement, even if mutually agreeable to both parties, does not violate the basic principles of non-discrimination under the law. Also, ADA mediation cases may require auxiliary aids for communication access (Sign Language Interpreter, Braille, large print, etc.). These must be provided to ensure effective communication. Auxiliary aids are often the point of disagreement in the complaints by persons with disabilities against either private entities or government.
What about federal complaints which are not filed with the Department of Justice?
An individual with a disability may choose to go directly to an attorney to file an ADA complaint in federal court. An individual may simply want to write a letter to a company to ask for a solution before pursuing other options. In those instances, mediation would have to be suggested as a means of solving the problem in the early stages of the process. If agreed to voluntarily by both parties, then mediation could be used in the same manner as any other dispute in the community.
In the instances outlined above, the Department of Justice will not underwrite the costs of mediation; instead the costs will be borne by the parties or would have to be found elsewhere. Often, businesses may voluntarily choose or offer to pay for a limited number of mediation hours, with the hope that the mediation will avoid a more costly and formal complaint been filed in the future.
If the lawsuit is filed in court, the judge may require mediation. However, such action is at the discretion of the individual judge.
What about disability discrimination complaints filed under State Law?
Hawaii has state disability discrimination laws which are similar to the ADA. These laws are enforced by the Hawaii Civil Rights Commission. The Hawaii Civil Rights Commission also encourages parties to resolve their discrimination complaints through mediation. Its mediation program is voluntary, so all parties must agree to use the process.
For more information
- About the Department of Justice ADA Mediation Program: Call Key Bridge Foundation: (888) 528-1609
- About Mediation in general: Call the Center for Alternative Dispute Resolution - Hawaii State Judiciary: (808) 539-4237
- On disability rights in general: Call Commission on Persons with Disabilities: (808) 586-8121
- On the Hawaii Civil Rights laws and Mediation: Call Hawaii Civil Rights Commission: (808) 586-8636
