Mediating Difficult ADA Cases: Tips and Tricks

The Americans with Disabilities Act (ADA) is a 1990 civil rights law, designed to prohibit discrimination against individuals with disabilities. For business owners, Title III of the ADA is particularly relevant, mandating that public accommodations be accessible.

When a business is accused of violating these standards, it often results in a lawsuit. While these cases do often settle amicably at an early stage of the case, ADA mediation offers a confidential and often cost-effective alternative to protracted litigation, where the parties are dealing with an unusually difficult ADA issue, or perhaps need outside help to push them across the finish line.

Effective mediation of ADA lawsuits is crucial, as it allows both parties to reach a mutually agreeable solution outside the courtroom, even in difficult cases. This process can save significant time, money, and stress associated with a prolonged legal battle in those rare ADA cases in which the attorneys were unable to settle on their own. This article provides essential tips and strategies for navigating ADA mediation.

Common Challenges in ADA Mediation

ADA mediation sessions are rarely straightforward, particularly since run-of-the-mill ADA lawsuits do not end up in mediation. Mediating ADA cases often involves a unique set of challenges that can derail progress if not managed properly. Understanding these potential hurdles is the first step toward overcoming them.

Emotional Distress

ADA cases are not always about legal compliance; they are sometimes deeply personal. Plaintiffs, especially those who are not serial filers and who have faced a daunting challenge of some kind, may feel marginalized or disrespected, bringing significant emotional distress to the mediation table. This can manifest as anger, frustration, or a desire for vindication rather than a practical solution. For business owners, being accused of discrimination can feel like a personal attack, leading to defensiveness and resentment. An ADA mediator with significant experience as an ADA lawyer is critical for navigating these waters.

Power Imbalances

A perceived or real power imbalance can be a major obstacle. Plaintiffs in serious ADA cases may feel intimidated when facing a large business with what they assume are deep pockets and a team of lawyers. Conversely, a business owner may feel they are being unfairly targeted by a "professional plaintiff" backed by an aggressive attorney. This dynamic can breed mistrust and hinder the open communication necessary for a successful ADA mediation.

Legal and Technical Complexities

ADA regulations can be intricate and highly technical. Disputes can hinge on specific measurements, architectural standards, or nuanced interpretations of the law. A ADA mediator and the parties involved must navigate these complexities, which can be overwhelming without the right expertise. Misunderstanding the legal requirements or the technical aspects of accessibility can lead to unrealistic demands or ineffective solutions.

Preparing for ADA Mediation

Thorough preparation is the cornerstone of a successful mediation. Walking into the room unprepared is a recipe for a poor outcome. Business owners should take the following steps to build a strong foundation for the negotiation.

Gather All Relevant Information

Your defense starts with the facts. Collect all documents related to the lawsuit, including photographs of the alleged barriers, and any correspondence with the plaintiff or their attorney. It is also essential to gather evidence of your business's accessibility efforts. This may include:

• Architectural plans and permits.

• Records of past renovations or accessibility upgrades.

• Internal policies regarding customer assistance for disabled patrons.

• Photos and videos demonstrating the current state of your property.

Consult with Experts

Navigating ADA law requires specialized knowledge. Before ADA mediation, consult with an experienced ADA defense attorney who can assess the strengths and weaknesses of your case. They can provide a realistic evaluation of your legal exposure and help you understand the plaintiff's claims from a legal perspective.

Additionally, consider hiring a Certified Access Specialist (CASp) or another accessibility consultant. These experts can conduct a thorough audit of your property to verify the alleged barriers and identify any other potential compliance issues. Their report will be an invaluable tool during negotiations, providing objective, third-party validation of the facts to your ADA mediator.

Set Realistic Expectations and Goals

Mediation is about compromise, not total victory. Work with your ADA attorney to define clear and realistic goals. What is the ideal outcome? What is the minimum you are willing to accept? Understand the potential costs of litigation—including legal fees for both sides and possible damages—to appreciate the financial benefits of a settlement. Entering mediation with an all-or-nothing mindset will likely lead to an impasse. Be prepared to be flexible and focus on finding a practical, forward-looking solution to the case.

Effective Mediation Strategies

Once you are prepared, the focus shifts to the mediation session itself. Employing the right strategies can help de-escalate conflict and steer the conversation toward a productive resolution.

Real-World Case Studies

To illustrate these strategies in action, consider these anonymized examples:

Case Study 1: The Restaurant with the Steep Ramp: A restaurant owner was sued over a ramp that was allegedly too steep. The plaintiff, a wheelchair user, demanded a significant financial settlement and the immediate replacement of the ramp. During mediation, the restaurant owner's attorney presented a report from an accessibility consultant confirming the ramp was non-compliant but also outlining a cost-effective remediation plan. By acknowledging the issue and presenting a clear, proactive plan to fix it, the owner demonstrated good faith. The parties were able to agree on a reasonable timeline for the repairs and a much smaller financial settlement than initially demanded.

Case Study 2: The Retailer with Narrow Aisles: A small boutique was sued by a visually impaired individual who claimed the store's cluttered aisles were a hazard. The owner was initially defensive, feeling the lawsuit was unfair. In mediation, the mediator helped the owner understand the plaintiff's experience of navigating the store. Instead of focusing solely on financial demands, the conversation shifted to practical solutions. The owner agreed to redesign the store layout to create wider, clearer paths and to implement a new policy for keeping aisles free of clutter. This focus on future compliance satisfied the plaintiff's primary interest, and the case settled with minimal financial payout.

ADA Mediation as an Alternative to Litigation

Navigating an ADA lawsuit can be daunting, but mediation offers a powerful tool to resolve those rare difficult ADA disputes efficiently and protect your business. By understanding the common challenges, preparing meticulously, and employing effective negotiation strategies, you can turn a contentious situation into a constructive opportunity. The goal is not just to end a lawsuit, but to emerge with a stronger, more accessible business, secure in the knowledge that you have mitigated legal risks and reinforced your compliance with ADA standards.

If you are facing an ADA lawsuit, do not go it alone. Partnering with a skilled ADA defense attorney is the most critical step you can take to defend your business and achieve legal peace of mind - and if your case turns out to be difficult to resolve, than mediating the matter may be the best course of action. Learn more about Nolan Klein's ADA mediation services here.