How are mediations done under the Americans with Disabilities Act?

Dear Ms. Allison: My sister is going to be involved in an Adult Care mediation. She is disabled. I heard that mediations are covered in the Americans with Disabilities Act so wondered if you could explain how my sister will be accommodated in this meeting. Angela in Iowa

Dear Angela:

Each mediator does his or her own things but yes, mediations are covered in the ADA. Except for their challenges, people with disabilities are just like everyone else: likely to find themselves involved in a caregiving, business, family, or other similar disputes. All mediators need to know how to offer accessible mediation sessions. All mediations should be accessible for people with disabilities, but Adult and Elder Care Mediators should make their sessions especially accessible to people with disabilities and their caregivers.

The Americans with Disabilities Act (Title III) requires mediators to make their facilities and services accessible to clients in the way that other public accommodations are. To be sure, sometimes the responsibility for that is shared with a facility or institution like a company, nursing home, or school. Still, the mediator bears part of the responsibility along with that facility.

Another important aspect of the mediator’s role is attitude. Using appropriate and respectful terminology and manners is a critical part of demonstrating not only accessibility, but also furthering interpersonal relations.

No Assumptions
No mediator should ever assume she knows what a participant with a disability requires. She should not take the word of another party unless necessary, because the person with the disability cannot communicate his or her needs. When mediation is scheduled to include someone with a disability, the mediator should discuss access needs directly with that person whenever possible. The person with the disability should come away knowing exactly what will happen in the session so that he or she can clarify what accommodations will make the session accessible.

All manner of obstacles can arise, including hearing, visual, and physical, length of session, cognitive or psychiatric ability to concentrate, interpreters, breaks, medication routines, equipment, stress, and more. Taking the disabled participant’s requests into consideration, negotiations must occur to assure agreement amongst all parties on who chooses, arranges, and pays for what accommodations.

Wise mediators also will learn about important aspects of a disabled participant’s condition(s), such as symptoms of exhaustion, disease effects, distractions, and more. Mediators seasoned in working with people with disabilities not only have training, but also experience in noticing signs and symptoms to deal effectively with them. Many have developed contacts or data lists of resources to assist with the mediation process when people with disabilities are involved.

To Share or Not to Share – Confidentiality Issues
It’s possible that sharing information about the disability could help to resolve the dispute, so when appropriate, a mediator asks the person affected for permission (perhaps with a waiver in writing} to explain what is appropriate for the other participants to know. Some mediators share simple handouts that the affected person has approved. Sometimes, the person with a disability can do the explaining. Other times the mediator or an independent resource might do it.

On the other hand, confidentiality is a very personal decision. To those whose disabilities are obvious, it may not seem as significant as it might to persons with “hidden” disabilities – ones that other people cannot see. Those persons may not want the other party to know their hidden conditions. Smart mediators explain to people who can understand it that leaving the other party(ies) unaware might make the mediation take longer to resolve. An experienced mediator takes great care to follow the wishes of a disputant with disabilities and assures he or she understands the factors that can ease or complicate negotiations.

The Example – Attitude and Self Discipline
The mediator sets the example for every party in the dispute. Often, people are only in dispute because they had no example to follow for how to respectfully work with a person with a disability. And let’s be real, not every disabled person is charming and easy going. Still, people have a right to be treated with dignity even if their personalities are not to your liking. A mediator who has the discipline to control her attitudes demonstrates to others that it is possible and effective. Trust can be established in that environment, where it cannot be created when people ignore needs, do not monitor their responses and reactions to physical issues, discount cognitive abilities, show impatience with the time required to address a concern, talk over or for them, or disbelieve a person with a hidden condition is disabled. These are all choices.

Setting Up the Room or Meeting Space
Working with a disabled person’s guidance a meeting room can be arranged most effectively. From seating arrangements to air filtration, lighting and sound, space, access to entry and exit, everything will impact everyone’s ability to participate in the session, especially those with disabilities.

During the Meeting
Introductions and Ground Rules
As a professional, the mediator should explain everyone’s role in the mediation as part of the introductions – the parties to the dispute, independent resources, accessibility helpers and aides, and so forth. Accessibility depends on collaboration of all participants at the session. Once introduced and with roles clarified, the mediator will explain the process, including efforts for accessibility. Such things as reminding people to look at the person to whom they are speaking not only opens communication, but also includes people and is especially helpful to persons with compromised hearing, for example. Stating that when anyone is speaking, he should state his name will help people feel heard, own their comments, and permit a visually impaired person to identify the speaker. Process adaptations needn’t always be stated as measures for accommodation. They can often be stated as meeting ground rules, so as not to point out the disability when announcing it is unnecessary or not preferred by the disabled party. Disability-related issues not pertinent to the case should not be raised. For instance, a person’s support animal has little to do with issues of whether a certain type of medical specialist is needed to provide optimal services.

Disability etiquette is critical to building trust and being the example of assuring equal access in the meeting for the person with a disability. Matters of etiquette include things like avoiding baby talk or talking down to a person who has cognitive troubles or who is small of stature or elderly; not invading personal space by handling a person’s mobility devices, hearing or visual equipment; or treating a guide or support animal as a cute, little pet. A mediator who observes these elements of decorum shows other parties the way.

Using the Caucus for Focus
At times, people with cognitive and psychiatric disabilities have difficulty participating in a mediation session because of their inability to process information or order their thoughts so others can comprehend. A skilled mediator can use the “caucus” format to find out what she can do to facilitate more effective communication. A caucus is a private, confidential meeting where members of one side of a dispute, often with the mediator, focus on finding a solution. A caucus is separate from the joint session. If, however, the disabled person has not identified himself (keeping his hidden disability from the other parties), the mediator has no choice but to avoid making it a disability issue in the meeting and instead, just focus on what occurs in the session.

These are some of the many disability access issues that mediators may encounter. People with disabilities have the civil right to participate and have equal access in the mediation session. Through training, preparation and experience, mediators can ensure that they fulfill their obligation to provide equal access in their mediation sessions.

That’s your question, Asked and Answered. My best to you,
Gale Allison

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