Training day Mediation of ADA disputes

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					Training day: Mediation of ADA disputes
Donald, Carrie G
Publication: Dispute Resolution Journal
Date: Aug-Oct 2002
Subject: Mediation
Location: United States
HEADNOTE
Day

Mediating workplace conflicts stemming from violations of the Americans with Disabilities Act
(ADA) requires specific skills honed by special training This is something that the Institute for
ADA Mediation recognizes and addresses in its training program designed for mediators,
attorneys, and human resources and other government officials.

Carrie Donald and John Ralston write about the institute's training program, as well as the results
of a survey of the program's participants. The article provides a background of the ADA and
different dispute resolution methods, and how mediation in particular can answer the unique
needs of parties in ADA-related disputes.

The Americans with Disabilities Act of 1990 (ADA), which was signed into law on July 26, 1990,
prohibits discrimination against individuals with disabilities in employment, public service, public
accommodations, and telecommunications. Title I of the ADA addresses employment
discrimination and extends to qualified persons with disabilities the same rights afforded to
minorities and women under the Civil Rights Act of 1964.

However, unlike other classes, the disabled have had little legal recourse to fight discrimination,
and have been relegated to relative political powerlessness. Therefore, the Congress found that:

the nation's proper goals regarding individuals with disabilities are to assure equality of
opportunity, full participation, independent living, and economic selfsufficiency for such
individuals2

Toward those goals, the ADA's purposes, in part, are: (1) to provide a clear and comprehensive
national mandate for the elimination of discrimination; and (2) to provide clear, strong, consistent,
enforceable standards addressing discrimination against individuals with disabilities....;

An individual with a disability is defined as someone who has a physical or mental impairment
that substantially limits one or more major life activities such as walking, speaking, breathing,
learning, performing manual tasks, or working; has a record of such an impairment; or is regarded
as having such an impairment.4
The ADA requires that each individual's situation be analyzed on a case-by-case basis. Whether
the ADA covers the person does not depend on the diagnosis or name of the disability, but rather
on its impact on the individual in question.5

Simply stated, the condition must substantially limit a major life function. However, there are three
factors that must be considered to determine if the disability substantially limits a major life
activity: the nature and severity of the impairment; the duration and severity of the impairment;
and the permanent or long-term impact or expected permanent or long-term impact.6

According to the ADA, a threshold question is whether the individual with disabilities is qualified to
perform the essential functions of the job that are determined by the employer.' If an employee
with a disability is qualified, then an employer is required to provide reasonable accommodations
for the job, unless the employer:

        can demonstrate that the accommodation would impose an undue hardship on the
        operation of the business of such covered entity....8

"Reasonable accommodation" is defined as:

 (A) making existing facilities used by employees readily accessible to, and usable by,
 individuals with disabilities; and (B) job restructuring, part-time or modified work schedules,
 reassignment to a vacant position, acquisition or modification of equipment or devices,
 appropriate adjustment or modifications of examinations, training materials or policies, the
 provision of qualified readers or interpreters, and other similar accommodations for individuals
 with disabilities....9

To determine an appropriate accommodation or before concluding that an accommodation is not
possible, employer and employee are required to engage in an interactive process of considering
accommodations alternatives."

Recent U.S. Supreme Court Rulings

The U.S. Supreme Court has recently made three rulings, Sutton v. United Airlines, Inc., Murphy
v. United Parcel Service, Inc., and Albertsons, Inc. v. Kirkingburg, that may partially stem the
proliferation of ADA disputes in the courts and regulatory agencies.


In Sutton, twin sisters with uncorrected 20/200 vision in one eye and 20/400 in the other were
denied opportunities as global airline pilots because they did not meet United Airline's
requirement of uncorrected vision of 20/100 or better, although their corrected vision met the
20/100 requirement. The sisters argued that United's requirement limited a major life activity,
working.
However, the U.S. Supreme Court ruled that, because the sisters were barred only from the one
job with United, they were not limited from working in generaljust the one job. They were found
not to be disabled under the ADA."

In Albertsons, Inc. v. Kirkingburg, the plaintiff had a disorder resulting in monocular vision.
However, he had learned to compensate for the condition by adjusting how he sensed depth and
peripheral objects. Having so reduced the vision impairment, the U.S. Supreme Court found
the plaintiff no longer disabled."

In Murphy, a truck driver with high blood pressure was terminated from employment when he
could not receive his Department of Transportation driving certification.

However, the Supreme Court found that the driver was not disabled under the ADA because the
hypertension was controlled with medication and he was able to live a full life. Moreover, being
denied driving certification was not the same as being substantially limited."

Each of these cases has narrowed the definition of disabled under the ADA and will therefore
reduce litigation, at least under similar circumstances. Nevertheless, the courts and agencies are
still burgeoning with ADA-related cases.

Therefore, as with other disputes, the courts are encouraging alternative means of dispute
resolution in ADA cases.

Indeed, the Equal Employment Opportunity Commission (EEOC), charged with Title I
enforcement, reports that from July 1992 through March 1999, it had resolved more than 117,000
cases without court-filed action. 14

Alternative Dispute Resolution

An article in the September 1987 issue of The Australian Law Journal provides an excellent
analysis of alternative dispute resolution (ADR) by examining each element: alternative, dispute,
and resolution. In ADR, the "alternative" is over structured means, such as litigation or
administrative hearings, now in common use.

However, writing specifically on ADR initiatives within the legal profession, the author does not
include mediation in his analysis because it is "based on the premise that conflict is not the
preferred methodology for settling disputes." Rather, he believes ADR's purpose is to: ... preserve
our adjudicative procedures by removing...those disputes which will yield to streamlined
resolution techniques based upon principles of advocacy."

However, in more recent years mediation has moved into the ADR toolbox and is rightfully
included in any discussion of disute resolution methods.
Lastly, the "resolutions" that ADR can yield may be, for example, contractual agreements or
simple cash payment as in traditional litigation.

However, the resolution process allows for creative and unique solutions and means for achieving
solutions, perhaps impossible in traditional forums like the courts.

Interests vs. Positions

Writing in the context of negotiation, Fisher, Ury, and Patton's Getting to Yes" provides some
excellent guidance for implementing ADR.

Summarily, in approaching any dispute or problem, they suggest first separating the people from
the problem. That is, "deal with persons as human beings and with the problem on its merits."
Then, invent options for mutual gain by "generat[ing] many options before selecting among them."

Finally, use objective criteria in reaching acceptable solutions. That is, instead of arguing what the
other side is willing to give versus what you are willing to accept, choose a mutually acceptable
objective means of measure. Fisher, Ury, and Patton use an example of negotiations toward
settlement between an insurer and insured for a totaled car. Rather than arguing specific final
settlement amounts for a claim, the parties agreed to use a base book-valuation, then add
applicable extras (e.g., cassette decks, power windows). In this way, the parties focused on the
goal of a just claim settlement rather than the position of what each party was initially willing to
do.

This "interest-based" dispute resolution has advantages over traditional "position-based" methods
such as lawsuits. As the General Accounting Office's (GAO) 1997 report, "Alternative Dispute
Resolution: Employers' Experiences with ADR in the Workplace" notes, in traditional dispute
resolution parties stake out their positions, e.g., complaint of, or defense against a complaint of,
discrimination, and strive to win.

Disputes amenable to ADR are those for which reasonable settlements are likely, although
mediators may have to work with parties to move toward their interests. That is, ADR is most
effective in situations where parties believe settlement is possible and attractive, "even though
one or both parties enter the process convinced that he or she will prevail."16

ADR techniques, however, are typically interest-based and work: to resolve... conflict at a more
basic level, perhaps even bringing about a change in the work environment in which...conflicts
developed."

Position-based dispute resolution focuses on adjudicating complaints, an interest-based
approach facilitates parties clarifying the underlying issues and resolving the core problems
leading to the complaint? Although parties may enter the ADR process holding strong positions, a
skilled mediator or other ADR practitioner can work to increase mutual awareness that could lead
to successful dispute resolution.

An article in the February 2000 Dispute Resolution Journal=20 further illustrates the contrast
between position- and interest-based stances as illustrated in a collective bargaining context in
which manufacturing facilities are having difficulty recruiting and retaining particular skilled
employees. In a traditional situation an employer may state the position that it wishes to offer
these skilled employees an extra raise, then the union would either accept, reject, or make a
counterproposal. Although the interest of the employer-recruitment and retention-may or may not
be obvious, the focus is on the positions taken.

By contrast, in interest-based bargaining the employer may begin by explicitly stating the interest
of developing a more effective recruitment and retention strategy, then parties explore the options
to meet this goal, of which offering an extra raise is just one. The advantage being that of
cooperative interplay of ideas and getting at the "why" behind a proposal rather than arguing
solidified positions." In an ADR process where parties are disputants, not bargainers, it is the
neutral third party, e.g., the mediator, who aids parties in identifying and stating their underlying
interests or the "why" of their positions.


Forms of ADR

Mini-trial

  ADR methods generally include an objective third party to guide or direct the process. This third
  party strives to ensure that the focus on parties' interest is maintained. In a mini-trial, as in most
  ADR methods, a neutral third party serves an active role as needed by asking questions,
  sharing observations, and aiding parties in prioritizing interests. Each of the disputants presents
  its case with little or no cross-examination by the other side so that each side may hear and
  assess the other's position. Although the neutral facilitator may ultimately serve as "judge" in the
  mini-trial, the goal is for the parties in the dispute to negotiate toward settlement. Attorneys may
  be present for consultation, but often do not participate in the discussions directly. However, if a
  settlement is reached, the attorneys will typically draw up the settlement documents.22

Arbitration

"[A]rbitration is the submission of a dispute to a third, neutral party for final binding resolution."23
Typically, the third party is either a single arbitrator or a three-member panel. The arbitrator is
selected by the disputants from a list supplied by a professional arbitration service (e.g.,
American Arbitration Association) or procedures outlined by another entity such as the Federal
Mediation and Conciliation Service (FMCS).

The arbitrator then works with the disputants to establish the date, time, and place of the hearing.
Arbitration is "less formal" and "based primarily on fact-finding and only secondarily on legal
issues.1121 Yet, much like in a courtroom, each side presents its case and evidence, and
questions the opponents. There may be witnesses presented and some legal discovery in the
preparation phase.

However, the arbitrator is the sole determiner of materiality and not bound by the courts' rules of
evidence. After each case has been presented, the arbitrator makes a binding decision within a
specified time frame.

Compared with litigation, arbitration usually is far less costly. One 1996 study found the median
cost of arbitration is just under $12,000 with a median duration of 60 days. Lawsuits can easily
run into the hundreds of thousands of dollars and last months or years. However, unlike court
decisions, arbitration decisions are binding and not subject to appeal, except in rare
circumstances.26 Therefore, if either party, or even both parties, are dissatisfied with an
arbitration decision, there is virtually no further remedy. Of course, this is one reason why costs
are lower, binding decisions eliminate costs of appeal.

Mediation

Mediation is "negotiation assisted by a third party. 112 Like most ADR methods, mediation can
take a number of forms. However, it consists of typical elements from case to case. In part,
although the mediator's activities are similar to those of the neutral facilitator in the mini-trial, his
or her goal is reaching a settlement agreement by allowing both sides to vent emotions and
frustrations and state interests for all to hear and acknowledge. Through their objectivity,
mediators serve by discerning interests and underlying issues and re-stating them for involved
parties.

Mediators never act as final judges. Rather, through reflective listening they can assure each
speaker is heard and allowed to clarify his or her interests. In this way, each party to the dispute
may come to understand better the opposing side through its own voice and through the
mediator's reflection. That is:

mediator can help parties move past a deadlock over positions by getting them to identify their
underlying interests and develop creative solutions that satisfy their interests."

Mediation, therefore, allows disputants to Maintain control over results. Moreover, mediaon can
facilitate:

compromise, conciliation and the preservation (or restoration) of a working relationship between
the parties.....9

Mediation in the workplace
Mediation is becoming increasingly popular for settling workplace and employment disputes for all
the reasons discussed earlier, but also because it is believed to be significantly less expensive
than litigation. Employment-related litigation has increased 2,000% over the last 20 years; the
EEOC reported a 22% increase in complaints between 1992, its first year enforcing the ADA's
Title I, and 1993.1" However:

 mediation is an attractive alternative to litigation because it costs less, reduces emotional wear
 and tear on everyone, and removes timeconsuming trials from federal court dockets."

This makes equally attractive both ADA mediation and related training.

Voluntariness and ADR

Regardless of the specific form of ADR employed, it is critical that all parties be fully involved and
in support of settlement. Without this good faith on all sides, ADR will likely result only in further
expense and delay. Robert E. Meade, senior vice president of the American Arbitration
Association, testified before a U.S. Senate committee:
IMAGE PHOTOGRAPH 41
that any ADR method used in the employment context is most effective when the parties
knowingly and voluntarily agree on the process, and have confidence in the neutrality of the
mediator or arbitrator and the procedures.... 12

Indeed, the GAO report noted that some organizations implementing ADR policies cited the
importance of top management commitment and employee involvement in establishing,
developing, and maintaining ADR programs."

Programs on Negotiation and Mediation Numerous higher education institutions and independent
nonprofit organizations maintain programs for the study and promotion of ADR.

The Harvard Program on Negotiation is, perhaps, most well-known in ADR circles. Several others
are also noteworthy and discussed below.

Harvard Program on Negotiation

A consortium of Harvard, MIT, and Tufts University committed to improving the theory and
practice of negotiation and dispute resolution, the Harvard Program on Negotiation is housed in
the Harvard Law School." The program itself maintains several units with various specializations,
focused on the overarching purpose:

        to change the way people, organizations, and nations resolve their disputes-shifting the
        process from `win-lose' outcomes to "all-gain" solutions.

This purpose is pursued by designing and implementing improved ADR techniques and
educational materials.
Perhaps the most well-known arm of the Program on Negotiation is the Harvard Negotiation
Project (HNP) led by Roger Fisher and Bruce M. Patton of Getting to Yes fame. HNP is dedicated
to applied research in that its theory and practice development are intended to be "first and
foremost, useful to the practitioner."

The Harvard program also houses several other units. The Dispute Resolution Program, for
example, is focused on promoting "research and experimentation on an array of alternative
dispute resolution mechanisms." Another example, most closely related to the workplace and
ADA, is the Program on Negotiations in the Workplace.

Although not specifically in place to address ADA issues, this program's goal is developing ADR
methods that: move employment relations away from a primarily confrontational posture toward
one that emphasizes cooperation, just problem-solving, and equitable treatment of all employees.

Cornell/ PERC Institute on Conflict Resolution

Cornell University (Ithaca, NY) and the Foundation for the Prevention and Early Resolution of
Conflict (PERC) also maintain a joint program dedicated to conflict resolution.

PERC is led by Theodore W. Kheel, a lawyer, mediator, arbitrator, and businessman. Thomas R.
Donahue, past AFL-CIO president, and William L. Lurie, past president of the Business
Roundtable, serve as foundation co-chairs. PERC states that its mission is: to promote the
understanding of and facilitate the use of various techniques to prevent conflict from arising
among parties and to expedite resolution without litigation .....


Cornell/PERC focuses on a wide range of areas from business to civil rights to health care.

Additionally, this institute provides joint research resources with Cornell's School of Industrial and
Labor Relations. Training programs are developed and offered for business, labor officials, and
others, with focus on skill building, conflict prevention and resolution, and systems design.

Key Bridge Foundation

As part of its ADA enforcement approach, the U.S. Department of Justice maintains an ADA
mediation program. The mediators in the Department of Justice program are professional
mediators who have been trained in the legal requirements of the ADA by the Key Bridge
Foundation." The Key Bridge Foundation, among other services, provides a 40-hour basic ADA
mediation training program including "role-plays and demonstrations of disputes involving titles 1,
11, and III" of ADA. A sevenhour advanced course focusing on Title I (employment disputes) is
also offered. Training can also be customized, or original training designed, for specific clients.

Institute for ADA Mediation
The Institute for ADA Mediation is a joint program of the Access Center Partnership, a Louisville,
Kentucky-based nonprofit organization and the University of Louisville LaborManagement Center.
The Access Center Partnership is dedicated to providing "information and education resource[s]
on employing and accommodating individuals with disabilities." The Labor-Management Center:


promotes improved labor-management relations in the unionized sector.. including courses in
arbitration, mediation and alternative dispute resolution.37

The Institute is important for a number of reasons. First, "[M]ediation is the form of alternative
dispute resolution most consistent with the intent and spirit of the [ADA]." The statute itself
explicitly encourages:

the use of alternative means of dispute resolution, including settlement negotiations, concili

ation, facilitation, mediation, fact-finding, mini-trials, and arbitration.38

Second, mediation gives disputants the most control over outcome and process, and allows for
the case-by-case analysis and reasonable accommodation concepts within the ADA.

Third, the program explicitly incorporates perspectives on disability both through lecture and
interaction with persons with disabilities. Fourth, mediation can reduce costly and time-consuming
litigation.

Curriculum

The Institute for ADA Mediation prepares mediators for resolving workplace disputes related to
disability. The program is intended for mediators seeking specialized training, attorneys,
government equal employment opportunity (EEO) officials, union business agents, and human
resources officials. The specific training goals include enhancing specialized mediation skills;
acquiring knowledge of ADA; learning about reasonable accommodation in the workplace and
mediation processes; and increasing awareness of essential factors for establishing trust and
rapport with those having disabilities. Instructors are drawn from several professional arenas and
include attorneys, mediators, and academicians with specific knowledge and experience in the
areas of employment law, mediation, and the ADA. The curriculum carries 13.0 continuing legal
education credit hours granted by the Kentucky Bar Association. Continuing education credits are
also available through the University of Louisville.


The course lasts two full days and addresses the following topics: ADA legal requirements
(including qualified individual with a disability, reasonable accommodation, limits to employer's
obligations, and interplay of Family and Medical Leave Act/Worker's Compensation/Rehabilitation
Act); the disability perspective (including stereotypes and realities, interacting with persons with
disabilities, and accessibility considerations); mediation of disability-based disputes (including role
of the mediator, elements of negotiation, the mediation process); and essentials of ADA
mediation. The curriculum is interactive, incorporating both lecture and role-playing simulations.
Three course components are presented below.

First, the "Workplace Scenarios and Resource Panel" has proven to be an important training
element. During this one-and-a-half-hour small group exercise, participants work together with a
person with a disability, who serves as a consultant on addressing a specific ADA-related
workplace scenario. The resource panel has consisted of persons with readily apparent and
hidden disabilities, including persons living with effects of brain injury and quadriplegia, among
others.

A primary focus of the exercise is to plan for the accommodation needs of a party with a disability,
by drawing on the resource panelist's particular insights and interacting with the small group. By
interacting with persons with disabilities, participants also learn to build trust and rapport, and
better understand the effects of stereotypes and misconceptions.


After the small group exercise, the panel reassembles in whole for an open plenary discussion.
The panelists present their individual life experiences and offer constructive feedback on their
interaction with future ADA mediators.

This segment has proven to be a vital component to the seminar.

The second component for review is the "Impact of ADA Legal Requirements on Mediation," led
by an attorney. This lecture and accompanying article examine eight ADA topics, including
possible perspectives from employer and employee, their direct impact on mediation, and points
the mediator should consider carefully. The topics are: definition of disability, qualified individual
with a disability, essential job functions, reasonable accommodations, principles of reasonable
accommodation, limits to employers' "reasonable accommodation" obligation-undue hardship,
direct threat to health and safety, and medical records and examinations.

For example, regarding medical records, the article and lecture note that employers may request
continuing medical reports as part of an accommodation due to future risk concerns.

Employees may even agree to continuing reports as a means of expressing confidence in their
anticipated job performance. However, the mediator must be aware of ADA limits on obtaining
and using medical information. Moreover, "mediators will need to `reality-test... any position and
may "use hypothetical events to evaluate the consequences...." In all cases, mediators must be
ever aware of the ADA's provisions and the fact that disputants cannot violate those provisions
even if by genuine mutual agreement."

The course culminates with a mediation simulation in which participants plan, conduct, and
critique a realistic workplace mediation scenario. These fact scenarios have varied to include
disabilities requiring more complex accommodations, such as multiple sclerosis and narcolepsy,
and more complex working environments, such as high-tech labs and large plant settings.

On the afternoon of the first day, participants are provided with a package that includes the fact
scenario, including the role he or she will play. To make the simulation realistic, participants are
provided only with facts related to their respective role assignments. That is, the employee with
the disability is not provided with the analysis of the employer's position or the thinking of the
human resources director. Likewise, the human resources director is not provided with the
disabled employee's perspective. The mediator, in keeping with a realistic scenario, has only
limited factual knowledge of the case.

Faculty

Institute faculty come from varied professional and academic backgrounds and bring
understanding of the mediation process, workplace realities, and reasonable accommodation of
persons with disabilities. Faculty members include nationally recognized private mediators and
labor-management attorneys.

Participant Demographics The Institute for ADA Mediation has attracted a broad spectrum of
participants. Overall, 40% of past participants worked within HR/EEO-related fields, 28% were
attorneys, and 25% had some prior mediation training (although they were not necessarily
working as mediators). At 45%, public sector employees have represented the greatest
proportion of participants, with representatives from all three governmental levels and
universities. The corporate sector represents 19% of participants, including HR, occupational
safety and health officials, and attorneys. Private attorneys not currently active in mediation
comprise 13 % of participants. Active mediators, including some mediating attorneys, comprise
14%. Finally, 9% of participants were persons with known disabilities. Participant Evaluations At
the conclusion of each seminar segment, participants are asked to score that component for
content, presentation method, topic relevance, and overall quality. The "Workplace Scenarios &
Resource Panel," which involves interacting with persons with disabilities, and the mediation
simulation are both evaluated very highly and generate the most profound written comments.
However, in a follow-up evaluation of participants six months to two years after the training, the
areas that tended to be ranked as "most valuable" were the mediation simulation and a lecture
segment titled "Stereotypes and Realities," which focuses on misconceptions, language, and
etiquette issues. On the other hand, participants with greater experience working with persons
with disabilities tended to rank the stereotypes lecture as least valuable, in one case as
"redundant," given the respondent's "experience level." Likewise, some recognized the potential
value of the simulation while noting several areas for its further development. The mediation
simulation allows participants to apply what they have learned during the seminar. However,
given the two-day schedule currently in place, there is not enough time for all participants to
practice as mediators-a consistent critique. Training Outcomes and Effectiveness of ADR Of the
mediators who responded to the posttraining evaluation, five had conducted ADArelated
workplace mediations: two had conducted one to two mediations, one had conducted three to five
mediations, one had conduced 6-10 mediations, and one had conducted more than 20 ADA-
related workplace mediations. Such data does not facilitate meaningful quantitative analysis as to
impact of this training on court caseloads or other quantifiable outcomes, although this does
deserve further research as the program progresses. Still it is noteworthy that the mediator with
the most experience wrote in his posttraining survey that he would make no changes to the
training. The next most experienced mediator suggested improvements to the mediation
simulation, including developing a model mediation demonstrating various techniques.


Given the diversity of participant backgrounds and essentially subjective nature of many of the
benefits reported, e.g., personal growth, it is difficult to quantify the institute's outcomes.
Interestingly, although saving time and money and other quantifiable factors, are among the
substantive motivators leading to workplace ADR programs, there is little data on the realized
benefits after implementation. Indeed, the GAO reports: Most of the organizations we studied
gave only limited attention to evaluating the results of their ADR programs and the time or cost
savings those programs may have generated.

 Most of the organizations we studied had data to show that their ADR processes, especially
 mediation, resolved a high proportion of disputes .... Objective data were generally not available
 on the time and cost savings achieved by avoiding formal redress and litigation, nor on how the
 costs of dispute resolution involving ADR compared with the costs of more traditional
 methods.41 However, mediation was reported as effective, leading to dispute resolution in the
 organizations studied in as many as 94% of cases, although the U.S. State Department
 reported only 38% success in its eight cases. Otherwise, 60-75% success was typical.4'
 Generally, user satisfaction with workplace ADR was reportedly high, although comprehensive
 hard data was again sporadic.42 Implications for Further Research As the number of ADA
 Institutes alumni continue to grow, meaningful quantitative analysis of issues such as the impact
 of this training on numbers of cases reaching litigation will be possible. Some means of better
 understanding of how participants are utilizing concepts in their work would also be desirable,
 although this seems to be essentially subjective. For example, although the institute is providing
 mediation training, most of the participants are not mediators at the time of training or after,
 suggesting other purposes are being served. A continuing evaluation could be useful as well as
 the development of a comprehensive study of workplace ADR programs' outcomes. Areas of
 Further Development Although the Institute for ADA Mediation has experienced success in its
 first two years, participant evaluations and the steering committee have identified some areas
 for further development. First, the seminar has attracted a broad clientele with varying levels of
 ADA knowledge, and mediation experience, ADA-related and otherwise. Therefore, each
 course component is more valuable to some participants than others. Although this is the case
 with any learning experience, this could be mitigated here by offering different courses targeted
 to different experience levels. For example, those well-versed in ADA and related statutes have
 little need for the basic legal background. However, they will still benefit from the mediation
 training. Likewise, the seminar introduces basic mediation concepts in addition to ADA-specific
 issues. Again, this is not as valuable to experienced mediators as to those being introduced to
 mediation methods. However, it is the mediation simulation and role-playing that pose the
 greatest challenge. Participants and the steering committee generally agree that all participants
 should be afforded the opportunity of mediating during a simulation. However, with the two-day
 schedule there is not enough time to allow this. Particular revisions to the existing lectures and
 other exercises are unlikely to free significantly more time, and may reduce the knowledge base
 going into the simulations. Although several evaluations suggest extending the seminar by one
 to five days, there is concern this would reduce the appeal to the already very busy clientele.
 Overall, then, there is a tension with maintaining the open registration for the experienced and
 inexperienced and the two-day schedule, while also expanding the simulated mediation
 opportunities. One solution being considered is an optional third-day "lab" that would be
 dedicated to mediation simulations for those interested in gaining this additional experience.
 Attendance Since 1997, generally two sessions have been offered each year-one in June and
 November with an attendance objective of 25-30 persons each session. However, sessions
 have fallen short of the attendance objective, with the June 1999 session being canceled for
 insufficient registration.

 In July 1999, a telephone survey was conducted from the institute's mailing lists to determine
 what issues may be at play. The survey indicated that most of the persons contacted had no
 particular interest in ADA-related mediation or, in some cases, mediation per se. Subsequently,
 new mailing lists are being tested, including one from a larger national HR organization. Also,
 focus is being placed on larger corporations, government agencies, and mediation providers
 that are more likely to be involved in an ADA-related case. However, any person or organization
 inquiring about the institute receives a personal response and informational brochure. One
 narrow issue concerning the November session may be affecting federal agency participation.
 Some federal employees have indicated that the November session is difficult for their planning
 because their fiscal year does not open until October

1. That is, funds are not available until a few weeks before the November session-if the budget is
passed on time-making November registrations difficult. Conclusion Based on participant
evaluations and clientele served, the Institute for ADA Mediation has experienced success
attracting a wide range of participants including mediators, attorneys, arbitrators, federal and
state EEO officials, human resources professionals, law school professors, and local union
officials. Although falling short of full attendance targets, sessions were otherwise successful and
well-evaluated by participants.

As with any new program, however, there are areas for improvement in attendance and
programming. Institute planners are continuing to evaluate the program for improvement,
including possible additional course offerings.

Based on participant evaluations and data collected six months to two years post-training, the
Institute for ADA Mediation is very successful in providing the following: the technical and legal
requirements of the ADA, the interplay of the ADA with other employment laws, and the need for
mediators to implement reasonable accommodation for a party with a disability in order to provide
equal access to the mediation process. In addition, the institute effectively develops disability
awareness among participants, elements of negotiation, and skills in mediation. A weakness of
the training is the short time frame allocated for the mediation simulation, which does not allow all
participants an equally meaningful function in role-playing. In addition, due to the varied
background of participants, the level of instruction assumes too much of a knowledge base for a
minority of participants.

 ADA-related workplace disputes will continue for the foreseeable future, and this program can
 continually be improved to meet the changing needs of disputants. Also, this program can offer
 insights to other professionals interested in positive constructive responses to ADA-related
 disputes. Finally, this case study, undertaken in the context of the program's continuing
 evaluation, suggests recommendations for improvement and further research from which all can
 learn.43