Conflict Resolution Consulting

Conflict Resolution Consulting

Mediator on the Distinguished Panel of Neutrals at Dispute Prevention and Resolution

Mediations * Facilitations * Workplace Investigations * Coaching * Effective Communication Skills Training * EEO and Diversity and Inclusion Consulting and Training


MediatorAmritaMallik@gmail.com
(808) 772-4996

Thursday, August 27, 2015

Mediation and the Americans with Disabilities Act: Another Approach to Engaging in the "Interactive Process"



The Americans with Disabilities Act was designed to help ensure that all people, regardless of their disability, can have an opportunity to access goods, services and employment.  The law is designed to accomplish this in several ways, but perhaps the most fundamental way is through good communication.  

In the language of the ADA, this communication is referred to as the interactive process. The ADA is premised on the idea that proper communication between people with disabilities and their employers or other service providers can happen in a back and forth discussion about what the individual needs and what the employer or service provider can provide them.  In an ideal world, the interactive process looks like a productive back-and-forth discussion that results in what the law calls a “reasonable accommodation.”  In other words, effective communication about a need leads to creative problem solving, and the result is that the individual with the disability gets a reasonable accommodation in order to perform a job for the employer or engage a service provider.  Everybody wins.

Of course, we do not live in an ideal world, and the interactive process routinely falls apart due to ineffective communication.  When there is a communication breakdown between parties around what a reasonable accommodation would look like, the ADA simply cannot function.  This leads to dissatisfaction, and eventual lawsuits.

Mediation can provide another bite at the interactive process apple by facilitating an effective interactive process.  The purpose of the ADA can be fulfilled, an appropriate compromise can be reached, and a lawsuit avoided just by bringing the parties together with a trained workplace mediator.

I was reminded of this just recently, when I was brought in to mediate a claim brought with a government agency under the ADA.  In this situation, an individual with a disability and his employer had not been able to engage in an interactive process to figure out what the employee needed and what the employer could offer.  As a result, the employee had filed a charge of discrimination and was threatening a splashy disability lawsuit.

At the start of the mediation, it was clear that hard feelings abounded.  The employer was floored at being accused of discriminating against disabled employees and terrified of the negative publicity and cost this lawsuit would bring.  The employee was deeply disappointed and frustrated, and felt disrespected on behalf of the larger disability community.  Disaster appeared to be looming.

But thankfully these parties came to the mediation table instead of just forging ahead through litigation.  By using the mediation process, we soon discovered that the parties had never properly engaged in an interactive process in the first place.  The parties had never had a direct discussion of what the employee’s needs were.  Through mediation, I was able to help the employee clearly articulated the accommodation he required to do his job.  Once the employer understood what was being asked, they were readily able to provide the accommodation.  The employee was able to give his best efforts to the company, and the employer got a loyal employee and a better understanding of how to communicate with employees with disabilities in the future.  It was a true win-win.  Through the process of mediation, within a few hours, the lawsuit was dropped, good feelings restored and the promise of the ADA was fulfilled.  

Effective communication and engaging in the interactive process is the crux of the ADA.  Taking a mediation-based approach to the Americans with Disabilities Act helps to ensure that all parties involved clearly understand what is requested, what is possible and what is at stake.  If you find yourself facing a dispute under the ADA, litigation is not an inevitability.  Consider working with a mediator to help you properly engage in the interactive process and work towards a win-win resolution.

No comments:

Post a Comment