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Working It Out
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Business New Haven
4/5/1999
By: Debra A. Drexler
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In the November 2, 1998 BNH, attorney Kathleen Conway defined Alternative Dispute Resolution (ADR) and discussed the basics of the process. What follows is an abbreviated case study of an ADR, specifically a mediation concerning a business alleged to have violated federal and state discrimination laws.
What are the issues as
originally defined in the lawsuit?
Conway: The plaintiff, Mr. Smith, claimed that the owner of the Dewdrop Inn, Mrs. Jones, discriminated against him because he is blind. Specifically, Smith stated that Jones has banned him and his German shepherd guide dog from the restaurant.
How and why did the case arrive at mediation instead of proceeding to litigation in court?
ADR was introduced as an option in a status at an early stage of the case. Mrs. Jones liked the idea because she could minimize her legal fees and end the case quickly. Mr. Smith was interested in the quickest possible resolution; also, his goal was to be able to patronize the restaurant rather than being awarded money.
So, now the parties are at the mediator's office. What happens?
The mediator discusses the purposes of mediation and the process in general. The mediator has no power to decide who wins or loses, and does not express an opinion as to who is right or wrong. The parties are asked to agree to basic ground rules such as no physical displays, mutual respect (such as no interrupting) and the like.
And then?
Each party gets to tell his or her side of the story. Mr. Smith first states that the Dewdrop Inn is the only restaurant in the area of his job. Even before being banned, he has been ignored by wait staff and not seated and served in a reasonable time. They make it seem like they're doing him a big favor by reading him the daily specials. He was very embarrassed when asked to leave. Mrs. Jones, on the other hand, states that Mr. Smith's patronage simply isn't worth the trouble. The restaurant is extremely busy at lunch. Mr. Smith is confrontational and makes many demands - such as having the specials read and explained to him - that other patrons do not. He insists that his dog be with him instead of leashed outside. The wait staff could trip over the dog and injure themselves and/or other patrons. Mr. Smith protests the characterization and points out that Mrs. Jones' objections are all based on his perceived disability. Mrs. Jones responds that Mr. Smith could get take-out and avoid all of the problems. Mr. Smith becomes visibly angered at this suggestion.
It seems that the interests of each party are wholly contradictory to the other. What steps would the mediator take at this point?
During the 'presentation' process - and that word is in quotes because what the parties say is not recorded and is quite informal - the mediator identifies the issues and any areas of agreement and restates them for the parties. In this case, it appeared that the time involved and the dog - rather than Mr. Smith's blindness - were the major issues voiced by Mrs. Jones. The mediator then asked each side for suggestions to address these two problems.
And?
Mr. Smith suggested that the restaurant could call or fax the specials to him at work so they could be read to him there; he could then order immediately when coming to the restaurant. He could also be assigned a special table. Mrs. Jones agreed that this would help, and stated that he could sit with his smelly dog in the back corner, away from all of the other customers. Mr. Smith objected to the latter. The mediator noted some subtle clues - specifically the inflection in her voice and body language when discussing the dog - and asked Mrs. Jones the reason for the isolation. At that point, Mrs. Jones related her true concern and her very personal rationale: In her native country, animals are not permitted in eating establishments for any reason. Further, she had been attacked by a dog as a child, and is in great fear of them. She actually states that she will never forget the smell of that dog.
Why didn't the mediator just tell Mrs. Jones that the law prohibits the discrimination and she had no choice but to allow Mr. Smith and his dog into her establishment?
The mediator's role is not to explain the law and force adherence to it. The goal is to help the parties to listen and understand the dispute from the other party's perspective and find ways to deal with the issues. Once the parties actually listened to each other and the underlying reasons for their actions ('recognition'), they took more control over the process ('empowerment'). In this case, once Mr. Smith recognized the legitimacy of the safety and time-related issues, he was able to suggest workable accommodations. And, once Mr. Smith explained the specialized training and careful grooming that his guide dog had, Mrs. Jones agreed to create a space to accommodate them - near a wall but not isolated from other diners - as long as the dog would lie against the wall rather than in the aisle. The result was acceptable to both parties.
Kathleen M. Conway is an attorney in private practice in New Haven, specializing in environmental and land-use law. She also serves as a mediator for the U.S. Postal Service and Community Mediation Inc.
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