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Your UCP: National September 01, 2003
Employment

DOL Fact Sheets

Alternative Dispute Resolution

Introduction

The Americans with Disabilities Act (ADA) supports the use of alternative dispute resolution (ADR) as a quick and fair method for settling complaints without going to court. Section 513 of the ADA, 42 U.S.C. ¤12212, states: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement, negotiations, conciliation, facilitation, mediation, fact finding, mini-trials, and arbitration, is encouraged to resolve disputes arising under this Act.” Regulatory language reinforces this message.

ADR is a non-judicial means of settling ADA disputes outside of the courtroom, avoiding costly and time-consuming litigation after a complaint or dispute arises. The use of ADR mechanisms is intended to supplement, not supplant, other enforcement mechanisms available under the ADA. Both employers and employees can look to ADR as a “good sense” way to find a common ground. ADR offers both parties the classic “win-win” scenario, often resulting in creative and collaborative solutions. Two of the ADA’s provisions, “reasonable accommodation” and “readily achievable,” have often been successfully resolved through mediation and other ADR conflict-resolution strategies.

In order to help implement the ADR provision, the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) included dispute resolution as a major component of their original national ADA training for disability advocates. Since then, the DOJ has continued to fund ADA training projects for community and professional mediators, and both the DOJ and the EEOC refer cases for mediation.

Major Examples of ADR Techniques The following are four commonly used ADR techniques:

  • Mediation involves the use of a trained facilitator, known as a mediator, to assist the disputing parties resolve their differences informally by helping them to achieve a mutually acceptable agreement.
  • Arbitration utilizes a neutral third party to resolve a dispute after hearing arguments and reviewing evidence from both parties.
  • Conciliation uses a neutral third party to help resolve disputes by improving communications, lowering tensions and identifying issues and potential solutions by shuttling information between the disputing parties.
  • An ombudsman strategy investigates and expedites complaints, helping either of the parties settle a dispute or proposing changes to make the system (or employer, government agency, business, etc.) more responsive to the needs of the complainant.
Detailed information on two ADR techniques commonly used in resolving ADA issues appears below.

Facts About Mediation

The EEOC defines mediation as a problem-solving process that allows the parties to develop their own solutions through dialogue. Mediation is an informal process whereby a neutral third party assists the opposing parties reach a voluntary resolution of an employment discrimination charge. The decision to use mediation is completely voluntary for the charging party and the employer. Mediation gives the parties the opportunity to discuss the issues raised in the charge, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into resolutions. A mediator does not resolve the charge or impose a decision on the parties. Instead, the mediator helps the parties to agree on a mutually acceptable resolution. The mediation process is strictly confidential.

Advantages of Using Mediation

  • Mediation often saves time and money.
  • Mediation is a confidential process.
  • Settlement agreements secured during mediation do not constitute an admission by the employer of any violation of laws enforced by the EEOC.
  • Mediation helps maintain relationships between the parties. Mediation strives to treat both parities in an equitable and fair manner.
How Do I Find An ADA Trained Mediator?

Mediation is offered by the EEOC, as well as other trained mediators and community dispute resolution organizations. In 1991, the EEOC contracted with the Center for Dispute Settlement to conduct pilot mediation programs in four field offices (Philadelphia, New Orleans, Houston and the Washington, DC field office). An evaluation of the pilot programs indicated that mediation was a viable alternative to the traditional investigatory methods employed by the Commission. Congress funded expansion of EEOC’s mediation program in October of 1996. By the end of Fiscal Year 1997, each EEOC district office had a mediation program in place, supplementing its internal mediation staff with pro bono and contracted mediation services available within its jurisdiction.

Facts About Arbitration

Arbitration is a form of alternate dispute resolution commonly used in labor cases. In actuality, it is a private court in which the disputing parties agree to be bound by the decision of an arbitrator (neutral person) who is familiar with the issues being disputed. There can be no arbitration unless both sides agree to use this method. The agreement may be worked out in a labor contract or in a private contract long before a dispute starts. However, even if parties have never signed such an agreement, they may decide to arbitrate after a dispute arises. Once an arbitrator is selected by the parties, the case is scheduled and heard. There is no discovery in most cases. The arbitrator will usually dispense with evidentiary rules and will hear brief statements from each side at the beginning of the case. The parties then will present their cases. There is direct- and cross-examination as in court, but without formal rules of evidence and without many objections. The arbitrator usually will accept all evidence and will place whatever value on it he or she elects. After the hearing, the parties may agree to a “bench decision” where the arbitrator simply announces the result with or without reasons. If the parties do not ask for a bench decision, the arbitrator will write a decision with his or her reasoning.

Advantages of Using Arbitration

  • Arbitration is private.
  • Arbitration is nearly always faster than court cases.
  • The parties participate in the selection of an arbitrator.
For more information,please contact the EEOC Web site, or the nearest EEOC field office, 800-669-4000 (voice) or 800-669-6820 (TTY).

Source: U.S. Department of Labor, Office of Disabilitiy Employment Policy, July 2000

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