New York 
Makes Work Pay - Developing a path to employment for New Yorkers with 
disabilities

Medicaid Infrastructure Grant (MIG) Brief-
Assessing the Effectiveness of New York State Mediation Programs for People with Disabilities:
Recommendations for Improvements

March 2011

Prepared by the Legal Research Team of the Burton Blatt Institute at Syracuse University*

*Our thanks to the research assistance of Dara Lenoff, Dana Mele, Brandon Sawyer, M. Tovah Miller, Desire Derrick, Patrick R. Vanderpool, Jonathan Schnader and Rachel Patterson.

Table of Contents

INTRODUCTION
I. OVERVIEW OF MEDIATION IN NEW YORK STATE
A. MEDIATION SERVICE PROVIDERS
B. MEDIATOR LICENSING AND TRAINING
C. COURT APPOINTED AND COURT ORDERED MEDIATION
II. ANALYSIS OF KEY NEW YORK MEDIATION PRACTICES
A. VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES
B. MEDIATION IN STATE EMPLOYMENT
III. ALTERNATE MODELS AND PRACTICES
A. KEY BRIDGE FOUNDATION
B. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
C. WORKER'S COMPENSATION
D. MODELS IN OTHER STATES
IV. CHALLENGES AND OPPORTUNITIES
A. MEDIATOR QUALIFICATIONS AND CONDUCT
B. RECOMMENDATIONS
CONCLUSION

INTRODUCTION

Mediation is a cooperative settlement process of dispute resolution in which a neutral third party assists in making practical, legally guided decisions to resolve differences between parties in order to reach a mutually agreeable resolution. 1 It is a form of Alternative Dispute Resolution (ADR), a collection of processes used to resolve disputes informally and confidentially. 2 ADR generally is a way to resolve issues without the litigation process, and most of the time it is a voluntary process. 3 However, sometimes parties commit in advance to ADR before they encounter a problem (as in a contractual dispute resolution clause) and are then obligated to go through the process. 4 Potential benefits of mediation include faster results and lower cost than litigation, and greater emphasis on mutually agreeable and self-directed solutions. 5

The impartial mediator has no decision-making authority; his or her goal is to facilitate communication between individual parties so that they can settle the dispute themselves. Participation in mediation does not constitute an admission of any violation of the law and it can often resolve the dispute more quickly and inexpensively than investigation or litigation. 6

New York State (NYS) agencies at the Department level frequently use mediation with the general public. For example, the NYS Department of Education uses mediation for special education disputes. 7 Every individual resident of the state of New York can use mediation to settle disputes through a Community Dispute Resolution Center (CDRC).

Mediation specific to disability can be beneficial for the reasons mediation is generally beneficial, such as reduced time and cost involved in resolution. In addition, the ability to tailor the outcome to meet the individual needs of the parties is particularly useful in disability-related cases.  However, it can also be more or less effective or appropriate depending on whether it is adequately tailored to the needs and context of people with disabilities. In constructing this analysis, we first propose that an effective disability mediation program will involve mediators: a) with comprehensive training in mediation strategies generally, and disability issues specifically; b) possessing sensitivity to imbalances in power between people with and without disabilities; c) having experience with disability issues; and d) having tangible success in providing dispute resolution to people with disabilities, based on rates of utilization, mutually agreeable or equitable outcomes, and expressed consumer satisfaction. The ensuing discussion will review models in New York State, with attention to where existing programs and procedures do or do not conform to these goals.

This paper reviews and analyzes the primary mediation resources that affect or serve individuals with disabilities in New York State, with an emphasis on employment issues. Part I provides a general overview of mediation programs relevant to the State of New York. Part II analyses the prime three areas mediation is utilized in New York, that is, by the vocational rehabilitation system, by state agencies and their employees, and under the New York State Human Rights Law. In Part III we present alternate models for consideration as may benefit New York State. Part IV discusses the challenges and opportunities for improving mediation services in the context of disability and employment for New York State including recommendations for more effective and widely available mediation services.

1. OVERVIEW OF MEDIATION IN NEW YORK STATE

The ultimate goal of mediation is to reach a solution that is satisfactory to both parties. The mediation process commonly involves six phases (or steps) in order to reach such a solution. These are: 1) introductory remarks, 2) statement of the problem by parties, 3) information gathering, 4) problem identification, 5) bargaining and generating options, and 6) reaching an agreement. 8 During the introductory phase, meetings take place in a controlled setting so neither party is threatened. 9 The mediator sets the ground rules so that meetings run smoothly and to ensure that parties do not interrupt one another. 10 In the second phase, the mediator asks the parties open-ended questions to understand emotions behind the dispute. 11 In the third phase, the mediator attempts to find common goals between parties, or issues that can be settled first. 12 In the bargaining phase, many mediators use a caucus in which each party can voice goals or underlying fears; this also may be accomplished in private confidential meetings. 13 Mediation can more rapidly produce a settlement to the dispute, which often is more cost effective and satisfactory to the parties. 14 Furthermore, it can improve the relationship between the parties and generally results in a higher compliance and implementation rate because the agreement is more narrowly tailored to the needs of the parties. 15

A. MEDIATION SERVICE PROVIDERS

Mediation services in New York often are provided by Community Dispute Resolution Centers (CDRCs) located in every county throughout the state. 16 CDRCs are independent, non-profit organizations funded by the Community Dispute Resolution Centers Program under the New York State Unified Court System Office of Alternative Dispute Resolution and Court Improvement Programs (ADRCIP). 17 In the 2008-2009 fiscal year CDRCs were funded 39% by local revenue and 61% by the Unified Court System. 18 The federal government contributed $78,395. 19 CDRCs provide mediation and ADR services to various agencies including the New York State Department of Health, the New York State Division of Housing and Community Renewal, the New York State Board of Elections, and the New York State Attorney General's Office. 20

The ADRCIP selects organizations that will provide CDRC services every five years based upon an organization's resources, quality and range of mediation services, diversity of mediators, and ability to educate the public and establish a diverse and consistent base of referral agencies. 21 One issue not explicitly addressed by ADRCIP in regard to its goal that mediators reflect both cultural diversity and the demographics represented by their communities 22 is whether the diversity goal includes individuals with disabilities. Mediation is provided by trained mediators at local CDRCs. The New York State Dispute Resolution Association (NYSDRA), an independent and nonprofit organization, also conducts mediation for disputes in various fields, including special education and early intervention services for children with disabilities. In both cases, mediation is voluntary and free to parents; if they are dissatisfied with the outcome they can move on to an impartial hearing as designated by law in their due process rights. Mediators come from local CDRCs.

B. MEDIATOR LICENSING AND TRAINING

There are no state regulations or licensing requirements for mediation professionals, 23 although numerous private organizations offer training programs. New York has a large network of mediator organizations that provide forums for discussion, training opportunities and some voluntary accreditation systems. These organizations include NYSDRA, the New York State Council on Divorce Mediation, the Safe Horizon Training Institute, and the Greater New York Chapter of the Association for Conflict Resolution among others. 24

At CDRCs, mediators complete training programs consisting of 30 hours of initial training and an apprenticeship, and must satisfy specific caseload and professional development requirements in order to maintain their certification status. 25 Mediators are generally local volunteers. The ADRCIP has a goal that mediators reflect both cultural diversity and the demographics represented by their respective communities. 26

NYSDRA certification requires no formal education degree and 40 hours training of which a minimum of 12 will be interactive exercises and supervised mediation role-plays. Certification is valid for a three-year period from the date on which it is conferred. To maintain certification, mediators must provide (1) evidence of continuing professional education in accordance with current continuing education requirements, (2) evidence of twelve mediations conducted within the three-year certification period (at least three mediations conducted within the last year), and (3) a self reflective response to the results from the Voluntary Consumer Quality Surveys completed by clients throughout the three-year certification period. 27 Besides NYSDRA and other similar private organizations, training in mediation is available through community mediation programs and continuing education programs at colleges and universities.

C. COURT APPOINTED AND COURT ORDERED MEDIATION

Mediators are brought into disputes both before disputes have escalated to the level of litigation and when appointed by a judge. New York requires training for court-associated mediators, and many private mediators specialize in certain dispute resolution topics, such as divorce or family law. 28 In July 2008 New York established statewide guidelines for the qualifications and training of mediators on court rosters. 29 The guidelines for court-appointed mediators require at least 24 hours of training in basic mediation skills and at least 16 hours of additional training in specific mediation techniques in the types of cases referred to them. 30 Mediators on these rosters are often lawyers, and although nothing in the New York State rules exempts non-attorneys from acting as mediators, the guidelines also require continuing legal education of at least six hours every two years. 31 Mediators often become specialists in particular areas such as family mediation, ADA mediation or managing workplace conflict. 32 Some areas of specialization require advanced certification programs that are different from the basic mediation training or years of expertise.

II. ANALYSIS OF KEY NEW YORK MEDIATION PRACTICES

CDRCs handled 21,436 mediation cases in New York in the 2008-2009 fiscal year. 33 According to data collected by New York State Unified Court System's Office of Internal Audit, the cost for each case "conciliated, mediated or arbitrated" was $433.00 and the cost per individual served was $90.00. 34 Seventy-six (76%) percent of these cases resulted in an agreement or final decision. 35 The low cost and high success rate highlight two complementary benefits of mediation in dispute resolution: economy and effectiveness.  Despite these benefits, mediation appears to be underutilized in New York's disability-related systems.

B. VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES

The Vocational and Educational Services for Individuals with Disabilities (ACCES-VR) mediation process endeavors to resolve disputes arising when an applicant for or recipient of ACCES-VR services wishes to appeal a decision that affects the provision of services. ACCES-VR was established by the New York State Board of Regents as a component of the University of the State of New York, an entity broadly comprising institutions, organizations, and agencies offering various public and private services. 36 ACCES-VR services encompass assisting students in transitioning to adult services, and providing vocational rehabilitation, independent living and employment services to individuals with disabilities. 37 The mediation process is offered as an option when an individual wishes to appeal a ACCES-VR decision such as a denial of services or a finding that a previously eligible individual is no longer eligible to receive ACCES-VR services. 38 It is a voluntary process and does not preclude the individual from pursuing other forms of relief or resolution if the outcome is not favorable to the individual. 39

1. Legal Authority for ACCES-VR Mediation

The Rehabilitation Act of 1973 governs ACCES-VR services. The Rehabilitation Act requires that each state create mediation and impartial hearings procedures for review of vocational rehabilitation agency decisions that affect applicants and eligible individuals. 40 It outlines notification, timing, and evidence rights elaborated in the Rehabilitation Act Amendments of 1998, amending regulations governing State Vocational Rehabilitation Services Programs. 41

The Rehabilitation Act requires state agencies to provide a timely review of any decision regarding an applicant or eligible individual's receipt or denial of services if the individual is dissatisfied with the decision. 42 ACCES-VR must provide notification of the right to obtain review of determinations, the right to pursue mediation, and the availability of the client assistance program. 43 Additionally, the Rehabilitation Act includes a timing requirement, and a provision that procedures under this section must afford eligible individuals or their representatives an opportunity to present evidence during mediation and impartial hearings, and to be represented by counsel or an advocate selected by the eligible individual. 44 Finally, the Rehabilitation Act  requires that mediation procedures ensure participation is voluntary, that the use of mediation does not impede or delay resolution of the dispute by other means, and that either party can terminate the mediation at any point in the process and may proceed with an impartial hearing. 45

New York State Regulation §247.2 sets forth the requirements for ACCES-VR mediations. 46 They do not differ substantially from the federal requirements. 47 The regulation does require that the mediator be trained in mediation and also be knowledgeable in the laws of vocational rehabilitation.

2. Funding and Costs of ACCES-VR Mediation

Mediation provided by ACCES-VR is paid for by the New York State Education Department. 49 Federal regulations provide that mediation costs associated with a vocational rehabilitation program are included in the program's administrative costs. 50 The state must pay the costs of the mediation process, at no cost to the participant, 51 although the state has no obligation to pay for representation if the eligible individual elects to employ counsel or an advocate. 52

3. The ACCES-VR Mediation Process

ACCES-VR's Due Process procedures exist as guidelines for staff members and do not establish "procedural or substantive rights for any individual or group." 52The policies and procedures are available to the public and posted online as a resource along with memos and relevant documents. 54 The procedure section (105.00P) contains pertinent information relating to the mediation process. For example, ACCES-VR's Due Process Procedure provides that a written request for mediation should be treated as a formal request for a hearing and that the hearing must be scheduled within sixty days of the receipt of the request unless the individual specifically requests that the hearing be delayed until after the mediation. 55 ACCES-VR is required to present mediation as an option "at all points of dispute." 56

ACCES-VR's Due Process Policy (105.00) provides applicants and eligible individuals with the opportunity for a review of any dissatisfactory decision regarding services by either Administrative Review, Mediation, Impartial Hearing, or a combination thereof. 57 The stated goal of mediation is to reach a "mutually agreeable solution" before a formal impartial hearing. 58 ACCES-VR procedures as framed are intended to encourage and assist individuals to participate actively, advise them of their rights and procedures of each method of dispute resolution, and inform them of the Client Assistance Program (CAP) at various prescribed stages in the process. 59

CAP is a federal program authorized by the Rehabilitation Act and overseen by the United States Department of Education Rehabilitation Services Administration (RSA),60 which provides grants to vocational rehabilitation programs nationwide. 61 The purpose of the program is to advise individuals with disabilities about available services under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. 62 The New York State CAP is a federally and state funded network of advocates who provide individuals with disabilities training and services to assist them in achieving and maintaining employment goals. 63 The CAP program is administered by the NYS Commission on Quality of Care and is available to all ACCES-VR recipients and applicants. 64 In ACCES-VR mediation, CAP provides advocates who negotiate with ACCES-VR to resolve initial complaints and assist in the mediation process. 65 If the preceding steps are unsuccessful and an individual chooses to pursue an impartial hearing or legal action, CAP may represent the individual. 66

Before requesting due process, the individual undergoes an Initial Review with a supervisory staff member, during which he or she presents his or her issue, the factors involved, and a request for the desired remedy, which the staff member decides immediately. 67 If the individual is dissatisfied with the decision, the staff member describes the options for Administrative Review, Mediation, and Informal Hearing. 68 An individual must request a due process review within 90 days of a decision or action he or she wishes to appeal. 69 Parties may present evidence supporting their positions. However, since mediation focuses on agreeable resolution rather than the "right" and "wrong" party, there is less emphasis on fact finding or weighing of evidence. 70 Rather, through a factual, legal, and policy discussion of the dispute in context, the mediator facilitates a discussion intended to result in a mutually satisfactory outcome. 71

ach party must have a clear understanding of all terms of the agreement, which the mediator writes and both parties sign before the close of mediation.72 The agreement must be implemented within 20 days. 73 Parties sign a confidentiality agreement prior to the commencement of mediation and discussions in mediation may be admissible in an impartial hearing or civil proceeding. 74 Participants in any of the due process methods available are eligible for the following support services from ACCES-VR: an interpreter fluent in the individual's dominant language or mode of communication, transportation "by the least expensive carrier necessary for an individual to attend" a mediation or hearing, and no cost to complainants for the mediation session. 85

4. ACCES-VR Mediation Service Providers

NYSDRA has a contract with ACCES-VR to resolve disputes arising when eligible individuals or applicants for vocational rehabilitation services wish to challenge a decision ACCES-VR has made regarding his or her application or receipt of services.76 Mediation services are provided to ACCES-VR participants by local CDRCs throughout the state of New York. 77 In addition to the standards and requirements applicable to all mediators, ACCES-VR mediators must not be an employee of ACCES-VR or of a vocational program doing business with ACCES-VR, or "have any personal or financial interest that would conflict with his or her objectivity." 78

5. Use and Effectiveness of ACCES-VR Mediation

As in all mediations, the primary goal of the mediator is to facilitate an agreement to which both parties are amenable by focusing on the parties' interests rather than their desired outcomes, or resolving the disparities between the alternative outcomes by constructing an outcome that serves the underlying needs of both parties. 79 In the ACCES-VR system, this minimizes the possibility that the individual pursuing an appeal will be denied a favorable outcome because of the nature of a hearing's strict "all or nothing"; decision regarding a denial of services.

However, data suggest that the number of ACCES-VR participants formally utilizing the mediation process is small. Federal regulations require the director of each designated State unit to submit annually to RSA the number of mediations conducted with corresponding data to be included in an annual report to Congress under section 13 of the Rehabilitation Act. 80 The New York State Unified Court System Community Dispute Resolution Centers Program Statistical Supplement for the 2008-2009 fiscal year reports five ACCES-VR cases out of 2,312 Public Welfare and Benefit cases served by CDRCs and eleven individuals with disabilities served out of a total of 5,100 in that category. 81 In addition, of the five cases, only two were resolved; among the other cases one or more parties withdrew before resolution could be established. 82

The Annual Review Report for ACCES-VR for the fiscal year 2008 provides some information about ACCES-VR's appeal outcomes. 83 Of decisions made in formal reviews, only one was made in the individual's favor, a decrease of two from the previous year, while 17 were in favor of the agency, an increase of seven. 84 In contrast, mediation outcomes are not disclosed, but 15 mediation issues were numbered by type, while 79 disputes resulted in an impartial hearing request. 85 This suggests that mediation is available but is not as widely used as the alternative methods for appealing ACCES-VR decisions. It also suggests that the currently utilized methods often do not result in favorable outcomes for individuals requesting decision appeals.

One possible disincentive for pursuing mediation may lie in ACCES-VR's policy of automatically initiating an impartial hearing when an individual requests mediation. The fact that an impartial hearing will necessarily be scheduled may discourage those considering mediation from selecting it as the main means of dispute resolution. Mediation may seem unnecessary or burdensome if it is to be followed by a second means of resolution. It also assumes that the mediation will not resolve the dispute. Mediation should be treated as an entirely distinct dispute resolution choice, separate from impartial hearing. The two differ greatly in process, tone, and often in outcome. Considering the general success of mediation under CDRCs in resolving disputes, heavier usage of mediation by ACCES-VR may yield positive outcomes for individuals appealing ACCES-VR decisions, and lower costs and reduced delay for ACCES-VR.

In sum, ACCES-VR offers a mediation process for individuals to appeal ACCES-VR decisions. The policies and procedures of ACCES-VR's mediation services are governed by the Rehabilitation Act and related state regulations. Statistical data for New York agencies suggests that mediation provides economic benefits, effective and satisfactory resolutions, and timely outcomes for participants and for the state. However, data indicate that ACCES-VR does not widely use mediation services. Because of the general benefits of mediation, it likely will be advantageous for ACCES-VR to increase usage of mediation in resolving disputes. Improvements in ACCES-VR's policy, such as removal of the simultaneous impartial hearing initiation and the prior initial review, may result in greater usage of mediation. These alterations potentially may impact individuals appealing ACCES-VR decisions in a substantial manner and utilize less time and economic resources than a formal hearing. The overall benefits of the mediation process make exploring options to increase usage worthwhile.

B. MEDIATION IN STATE EMPLOYMENT

Generally, state employees may submit employment discrimination complaints to the New York State Division of Human Rights, as discussed later in the section on the Human Rights Law. The New York State Public Employment Relations Board (PERB) also provides dispute resolution - though not typical mediation - for grievances and labor disputes between the state and its employees. 86 PERB conducts voluntary mediation/arbitration for grievances upon agreement of the parties to arbitrate for an administrative fee of $50 per party. 87 "[I]n some instances, after arbitration and fact-finding have been unsuccessful, the Director may determine that additional assistance should be provided to the parties, in which case a conciliator is assigned." 88 However, PERB does not usually provide full mediation services. The combined mediation/arbitration approach generally results in a binding decision made by an arbitrator; the possibility that the outcome will not be satisfactory for an employee with a disability may be higher than with typical mediation, which requires a mutually agreed upon outcome.

Another avenue of mediation is available to the employees of an entity receiving federal financial assistance under the Workforce Investment Act (WIA). 89 The New York State Department of Labor ("NYSDOL" ), authorized to enforce and implement the WIA using federal funds, 90 reviews employment discrimination claims under the act and makes voluntary mediation available to the parties through NYSDRA. 91 Persons eligible to file a complaint and receive mediation with the NYSDOL under the WIA include a broad range of beneficiaries, not exclusively state employees. However, one target population includes employees of NYSDOL. 92

The United States Department of Labor has published regulations that define the receipt of Title 1 WIA funds very broadly to include non-monetary assistance, such as training or support services. 93 For example, Title I funds are distributed through the DOL to non-profit/community organizations for training and education. 94 Other covered programs include: NYSDOLs Skills, Training, and Education Program (STEP) grants, NYSDOL's Emerging and Transitional Worker Training grants, and vocational programs teaching English as a second language, among others. 95 NYSDOL has contracted with NYSDRA to provide mediation services for employers of these programs. 96 To use this program, a complaint first must be filed with an Equal Opportunity Officer with a request for mediation. 97

Cases that qualify for mediation include those involving "disciplinary actions, appraisal/evaluations, promotion/selection, harassment complaints, performance-based actions, and reasonable accommodation." 98 After a complaint is filed, the Equal Employment Officer will refer the parties to a regional CDRC. 99 Upon consent of both parties, the mediator will conduct one or more mediation sessions within 60 days of the complainant's election for mediation. 100

1. The New York State Human Rights Law

The primary New York State statute that enables legal action for discrimination based on disability is the New York State Human Rights Law ("HRL" ). 101 The statute has established the New York Division of Human Rights ("Division" ), a body responsible for investigating a range of complaints involving discrimination in employment, housing, public entities and public accommodations, based on protected characteristics, including disability. 102 The HRL is enforced almost exclusively by the Division - private citizens bring claims in state court less frequently than they are handled by the Division.

In regard to mediation practices, the HRL provides that "[i]f in the judgment of the division the circumstances so warrant, it may, at any time after the filing of the complaint, endeavor to eliminate such unlawful discriminatory practice by conference, conciliation and persuasion." 103 The Division does not have distinct staffing or structures devoted to mediation exclusively. 104 However, Division investigative and prosecutorial staff members frequently conduct conciliation at various stages of the complaint process.

Despite the lack of funding, the Division has developed a partnership over the past 10 years with the CUNY School of Law at the Division's Lower Manhattan Office. 405 The mediation process is voluntary and if the parties agree to it, the director of the Law School mediation clinic conducts the mediation with law clinic students acting as second chairs. The Division staff has observed that complaints that involve a failure to provide reasonable accommodations are the most amenable to mediation. 406 Limitations of the CUNY Clinic include only one trained mediator on staff, and a relatively low participation rate among eligible complainants. 107 The mediation clinic is one model of alternative dispute resolution employed by the Division of Human Rights, but is not well resourced enough to fully meet the needs of New York state citizens.

2. Division Process

Although a formal mediation structure has not been fully implemented in the Division, the Human Rights Law does provide for conciliation, 108 a practice similar to mediation. A key difference between the two is that in conciliation, the conciliator will often meet with parties separately in order to attempt to secure concessions and settle the dispute. There is less emphasis on dialogue or conflict resolution directly between the parties, and the conciliator is less neutral, often playing a key role in proposing specific solutions, rather than simply mediating between the parties. Conciliation is a strategy the Division may elect to use to attempt resolution of a particular complaint. 109 The conciliation process may be commenced any time after a particular complaint is filed; however, it is usually undertaken after the conclusion of the investigation phase. Any agreement reached must include a promise from the employer to end the discriminatory acts at issue. 110 Such an agreement can include separate provision(s) intended to remedy the harm caused by the discrimination. 111 The Division is required to issue a written order to the parties confirming that they must comply with the terms of the agreed upon resolution. 112 The Division will then investigate within one year of the written order to ensure compliance with the terms, and impose up to one year of jail time and/or a $500 fine to enforce them. 113 A hearing usually is conducted at the Division offices after unsuccessful conciliation or if conciliation has not been attempted. The Division may opt to dismiss a complaint on the basis of "administrative inconvenience," meaning that for any reason, the case would be particularly difficult for the Division to pursue further. 114

Investigators address complaints and may attempt to settle the complaint through conciliation during the course of the investigation. Most commonly, conciliation takes place after the initial investigation, if the investigator determines that the case has merit and can proceed to a hearing. The most recently published Annual Report from the Division for 2007-08 stated that 24% of Division complaints filed are found to have probable cause. 115 Before proceeding with a hearing, where it appears to be a viable option, the investigator may encourage the parties to engage in conciliation. If conciliation at that stage fails, cases usually proceed to a hearing.

The Division is designed to operate as a party with an interest in "vindicating the human rights of New Yorkers," 117 including elimination and prevention of discrimination in employment. 118 The Division attorney acts on behalf of the state to vindicate the complainant's human rights, but not as the complainant's attorney. This is because the Division was designed as an alternative to the court system. Therefore, parties do not need a lawyer to file a complaint or to participate in the hearing process. A member of the Division staff will assist complainants throughout the hearing process without charge. 119 Additionally, if the complainant wishes and has the means, they can hire outside counsel at any point. Once probable cause has been found (and in some cases before it has been found), the settlement process is usually an option.

After finding probable cause and before the public hearing the Division often suggests a pre-hearing settlement conference with an Administrative Law Judge ("ALJ" ) presiding. In this type of conference the ALJ often steps into the unofficial role of the mediator. Pre-hearing settlement conferences are scheduled for most cases, however ALJs are not always available. The conferences are completely voluntary. 120 There are no notes or records kept of the conferences, only that a conference was scheduled and that it resulted in a settlement or that it did not. 121

Funding for mediation by the Division is, therefore, built into the overarching cost of staffing the investigative and prosecutorial branches. For this reason, specific resources for mediation may be limited wherever the overall demand for investigation exceeds existing staffing.

One advantage of organizing mediation resources through investigative and prosecutorial staff involves familiarity with the nuances of the complaint, as compared, for instance, with an outside arbitrator or mediation program. The Division has a strong organizational interest in using conciliation where possible, because it conserves limited resources that would otherwise be expended on proceeding with a full hearing. One potential drawback, however, lies in the diffuse responsibilities of investigators and prosecutors, who may not be as intensely trained or as experienced in successful mediation strategies, as professionals who engage in conflict resolution more exclusively. In addition, the status of the Division as a potential party in any legal action or resolution may reduce the neutrality and trustworthiness of a investigator/mediator, thus reducing his or her effectiveness as a neutral mediator. 

Outside of the Division, mediation of a complaint arising under the HRL may take place through the State court system, specifically the state ADR program. However, as noted, most mediation falling under the state statute is located within the processes of the Division.

The Division has approximately 200 staff, and approximately 85% of its cases are employment claims. There is not a discrete disability rights division responsible for mediation, investigation, or prosecution. Currently, the Division does not hire outside mediators, and most complainants cannot afford to hire professionally trained mediators.  Most complainants do not have or cannot afford outside representation or private mediators.

3. Empirical Data on Mediation within the Division

In the 2009-2010 fiscal year, the Division received 6,666 claims in total, all of which required investigation. 1502 of those contained a disability-related claim, as the sole or one of several causes of action. 122

Of disability-specific claims heard, 11% received probable cause determinations, allowing the complainant to proceed further. 123 An additional 17% of disability claims were resolved in the investigative phase through settlement. Of the remaining 72% of disability claims, 14% were dismissed, and 58% received a finding of no probable cause. Of the 11% which had not been settled and received the green light for a hearing, two-thirds were ultimately settled before or during the hearing process, 12% were dismissed before trial, and 25% proceeded to a hearing without settlement. Outcomes of this latter group usually (88%) are for the defendant, and only 12% for complainants.

The approximately 200 disability employment cases resolved by the Division in fiscal year 2009-2010 resulted in $358,683 in monetary awards to complainants ($254,450 via settlement during the investigation phase, and an additional $54,233 via hearings). 124 In 50 cases, complainants received a benefit. 125 In 31 instances, complainants received an offer of employment, and another 23 received improved employment conditions. 126 In 2 instances, complainants received a disability accommodation. Remedies provided by the Division are largely comparable to the EEOC, with the exception that monetary awards through the EEOC are on average substantially higher than those awarded through the Division; of 4,\244 complainants who received a merit resolution, the EEOC awarded $67.8 million in fiscal year 2009-2010. 127 Specifically, damages at the national level were on average, 9 times higher when weighed proportionate to the number of complainants.

Although the statutory deadline for completing investigations is 180 days, in practice, the median time for investigation and determination is 244 days. 128 Thus, the Division appears effective at resolving disability complaints without hearing.  However, there is a need to improve the speed of resolution as well as, possibly, the amount of relief obtained for complainants.  Mediation could serve those interests.

4. Proposed Legislation: The Morelle Bill 129

In 2009, New York Assemblyman Morelle sponsored a bill that would add a provision to section 297 of the HRL, requiring the commissioner of the Division to create a management and training plan, including a professional mediation unit. 130 The professional mediation unit "shall be comprised of mediators who have at least five years of non-division experience in discrimination mediation, who have demonstrated success in such efforts, and who have successfully completed discrimination mediation training programs." 131 Assemblyman Morelle plans to reintroduce the bill in 2011. 132

III. ALTERNATE MODELS AND PRACTICES

Other disability-related systems make greater use of mediation.  Some examples are discussed below.

A. KEY BRIDGE FOUNDATION

The Key Bridge Foundation mediates complaints under Title II (public entities) and Title III (private entities) of the Americans with Disabilities Act (ADA) under the ADA Mediation Program established by the Department of Justice. 133  The Department of Justice suggests that the most appropriate cases for mediation involve "barrier removal or program accessibility, modification of policies, and effective communication." 134  In 1994, the Department of Justice awarded the Key Bridge Foundation with the contract to conduct the ADA mediation program. 135 In fiscal year 2008, the Key Bridge Foundation received $900,000 specifically to administer the ADA Mediation Program. 136The Key Bridge Foundation trains professional mediators knowledgeable about the legal requirements of the ADA. 137  The Department of Justice refers appropriate ADA cases to Key Bridge mediators, at no cost to the parties. 138 Currently, there are over 400 mediators trained and available on Key Bridge's national roster, 139 and they have conducted over 1000 successful mediations through Key Bridge for the ADA mediation program. 140 Around 83% of ADA Mediation Program mediations conducted by Key Bridge Foundation mediators are successful, demonstrating the apparent effectiveness of the training program. 141

According to their Practice Standards for ADA Mediators Key Bridge requires mediators to adhere to standards of confidentiality and impartiality, have knowledge of the law, provide accommodations, and ensure the accessibility of mediation sessions. ADA mediation training by the Key Bridge Foundation includes a 40 hour basic mediation course, "role-plays and demonstrations of disputes," advanced mediation skills programs, and ADA specific courses. 142  Furthermore, Key Bridge provides "standards of conduct for ADA Mediation at Key Bridge Foundation" focused specifically on providing guidance for the mediation of ADA Title II and Title III complaints, excluding employment. 143 

B. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The EEOC developed a mediation program in the early 1990s in an attempt to more quickly and efficiently handle their caseload. Mediation is a voluntary process for 'B' cases (i.e., those determined to have strong suspicion of discrimination and need of further investigation during initial EEOC assessment). During intake, the EEOC officer asks if the charging party would like to pursue mediation. If the charging party agrees, then the respondent is informed of the charge as well as the possibility of mediation. The standard EEOC investigation is essentially paused while mediation occurs. The mediation is conducted by EEOC staff mediators.  However, the mediation is confidential and kept completely apart from the investigation. No confidential information revealed during mediation is available to the investigation. 144 If the mediation is not successful in reaching a resolution, parties can continue to pursue alternative means of resolution, including litigation.

According to a study conducted in 2000, participants in EEOC mediations are highly satisfied with the process. Over 90% of subjects in the study (both charging parties and respondents) were satisfied with the process overall.  Even when parties were not satisfied with the outcome of the mediation, they rated the process highly as a whole-especially in terms of understanding the process, prompt scheduling of the mediation, fairness of the mediator, and the opportunity to have their voice heard. 145 The high ratings of respondents who did not feel fully satisfied with the outcome suggests that EEOC mediators managed to mitigate the emotions and frustrations involved with conflict to gain the respect of the parties and adequately determine a resolution.

A 2001 study that surveyed mediators rather than participating parties found sources for improvement in the mediation process that dovetail with EEOC recommendations for successful mediation. These recommendations include an improvement of pre-mediation activities, such as improved screening of candidates that may benefit from mediation and further ensuring that parties understand the process and how to prepare for it. The report found that if a respondent has  legal counsel, it is very detrimental for the charging party to lack legal counsel, no matter the attempts of the mediator to level the playing field. 146

EEOC has compiled a comprehensive list for mediators about accessibility and accommodations in the mediation process. The list covers a basic introduction to accessibility and how to accommodate people with disabilities in the mediation process - an essential step to facilitating the kind of dispute resolution at the heart of mediation. 147 The EEOC also provides an explanation of rights to persons in mediation who seek accommodations. 148

In Fiscal Year 2009, 11,692 mediations were conducted across types of discrimination, by the EEOC. 149 8,498, or 72.7% resulted in a mutually agreeable resolution, with monetary benefits in the amount of $121.6 million, received by 7,512 persons. 150 986 persons received other non-monetary benefits. 151 Specific to disability discrimination complaints, 10.6% (n = 2597) of all complaints received in 2010 were resolved through settlement, often involving alternative dispute resolution. 152

Comparing the Key Bridge and EEOC procedures and guidelines, the root of these "best practices" seems to be in understanding the more subtle forms of conflict that can arise between various parties and facilitating discussion as a means to resolution without litigation. Crucial to resolving ADA disputes are the pains taken in EEOC and Key Bridge mediation processes to educate mediators about disability and ensure the mediation process is accessible to all. One difference between the two programs relates to the location of the mediation program. The EEOC maintains its mediation program in-house; mediators are employed directly by the EEOC. Key Bridge, in contrast, utilizes a private referral network. Currently, no empirical data is available specifically on comparative outcomes or satisfaction associated with private vs. governmental mediators. One advantage of the former is that mediators may be or be perceived as more objective, since they are not involved in the agency investigation process. The high satisfaction rates associated with the EEOC mediation program do suggest that in-house staffing can be comparable or more effective, whether due to system in-house training or monitoring, or comprehensive service delivery between investigation and mediation components.

C. WORKER'S COMPENSATION

The New York State Worker's Compensation Board provides conciliation for claims that are accepted by the insurance carrier, but have unresolved issues. 153 The stated purpose of conciliation for worker's compensation claims is "[t]o address claims in a more expeditious and informal manner, and to provide a mechanism for such claims to be processed without undue controversy." 154 Senior Board attorneys are assigned to act as conciliators, and if no agreement is reached between the parties at a conciliation meeting, the case may be prepared to go before an ALJ. 155

D. MODELS IN OTHER STATES

1. Mediation in State Vocational Rehabilitation Programs

On a whole, mediation practices in state Vocational Rehabilitation programs parallel mediation in New York's ACCES-VR program in structure, policy and practice. This is largely due to the fact that the programs are established and governed by the federal Rehabilitation Act. Unique programs are reviewed below.

California

Under California's administrative code, an individual has one year to appeal a decision regarding the provision or denial of vocational rehabilitation services. 156 Mediation may be, but does not have to be, requested at the same time a request for a fair hearing is filed. 157 This contrasts with practices utilized by ACCES-VR. Mediation will not delay a fair hearing unless both parties consent to a continuation. 158 California's allowance of one year in which to file for mediation as opposed to 60 days, for example, is more lenient and allows greater participation for individuals with disabilities who may be unable to file immediately because of disability related restrictions.

2. Mediation resources for state employees

Kentucky

Kentucky employs a centralized mediation program for all employees of the executive branch, through the Kentucky Employee Mediation Program (KEMP). 159 If the dispute involves an entire workgroup, the Workplace Resolution Group can conduct the mediation. 160 KEMP provides mediation for any grievable issue, including employment discrimination, ADA and FMLA disputes. 161 This structure helps ensure that mediation practices are more consistent and widely known across state agencies.

South Carolina

Employees of the state of South Carolina may request mediation from State Employee/Employer Alternative Dispute Resolution system created under the State Employee Grievance Procedure Act. 162 Mediators are selected from a "Statewide Mediators Pool" , with membership in this pool consisting of "individuals from various state agencies who have been nominated by their agency directors; have a background in human resources; complete a course in mediation theory and skills; and agree to attend yearly training to enhance their mediation skills." 163

Other States

Colorado and Nevada also have voluntary and free mediation programs available to all state employees for any type of grievance upon request. 164 Many other states have public employee labor relations boards with mediation procedures, without specifically providing mediation grievances arising outside of the labor relations/collective bargaining process.

3. Human Rights Mediation Statutes

Connecticut

Under Connecticut's human rights law, the Commission on Human Rights and Opportunities will notify the complainant and the respondent involved in a discriminatory employment practice dispute of the availability of either mediation or binding arbitration. 165 Both parties sign an agreement stating their intentions to enter into ADR, the type of ADR they will employ, and the company that will provide ADR services. 166 The parties in dispute are responsible for all mediation costs. 167 Although the cost of mediation is a disadvantage for many parties, the basic model of offering more than one ADR option to parties is in contrast to the NYS Human Rights Division, which provides for conciliation by staff only, excepting in one locale (lower Manhattan).

IV. CHALLENGES AND OPPORTUNITIES

A. MEDIATOR QUALIFICATIONS AND CONDUCT

The issue of mediator credentialing remains controversial as it involves the difficulties of defining the goals of mediation, the goals of mediation programs, and the fundamental knowledge, skills and abilities a mediator should have in addition to the numerous types of mediation programs across the United States. 168 Completion requirements for programs vary as there is no consensus on how much training is essential before a mediator can be declared competent and equipped to deal with the many diverse situations in which mediation is utilized.

Mediators' skills can be crucial to a quality outcome in mediation proceedings. The American Bar Association (ABA) 2002 Taskforce report on dispute resolution concluded that although there is no single, clear consensus on the knowledge, skills, abilities, and other attributes needed to perform effectively as a mediator, the Hewlett-NIDR Test Design Project provides a generally accepted description of a mediator's tasks. It consists of gathering background information; facilitating communication; communicating information to others; analyzing information; facilitating agreement; managing cases; and helping document any agreement by the parties. 169

The ABA has developed guidelines on both the conduct and preferred qualifications of mediators working under the aegis of the organization. For instance, the ABA's Revised Model Standards of Conduct for Mediators (2005) establish a standard of care for mediators, 170 and the American Arbitration Association and the Association for Conflict Resolution have adopted the standards. The Model Standards, in significant part, address self-determination, impartiality, conflicts of interest, competence, confidentiality, advertising and solicitation.

Furthermore, the ABA contends that continued training for mediators is critical to success. 171 They provide that a mediator should attend educational programs and related activities to maintain and enhance the mediator's knowledge and skills related to mediation. The ABA recommends that a mediator should not act in a mediation capacity in addition to acting as a lawyer to the same client. The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may, however, provide information that the mediator is qualified by training or experience to provide. 172

The 2002 ABA Taskforce report concluded it is useful to assess the quality of mediation training programs in terms of the "hurdles" that mediators must clear in order to engage in practice and the amount of "maintenance" or professional development required to enhance their skills over time. High hurdle/ high maintenance programs might yield greater credibility, but effective enforcement would require significant bureaucracy and might lead to a decrease in diversity. They would also likely reduce responsiveness to the particular needs of clients by promoting a certain style. 173 High hurdle/low maintenance programs, on the other hand, place too much emphasis on initial barriers to entry, blocking people with unique skills and narrowing the field through rigid requirements, while underemphasizing continued training. Low hurdle/ low maintenance programs, while yielding diversity, place high emphasis on 'contacts' and reduce attention to the value of continued improvement of skills as well as offering limited quality assurance. 174

The report recommends low hurdle/high maintenance programs, which yield high mediator skill levels and effective enforcement, though they require structure to provide a support system for mediators and a long-term commitment to, and by, each mediator which raises practicality concerns for a statewide system. The report asserts that effective support structures addressing individual mediator developmental needs, could provide substantial credibility for the dispute resolution field. 175

The report emphasizes that mediator credentialing should reflect a strong commitment to quality practice. 176 The ABA recommends using training programs as the primary means of obtaining qualified mediators, in lieu of an established form of accreditation as is the practice of numerous state court programs. 177 This may be the most flexible model at our disposal to improve the quality of mediation practice.

The 40-Hour Family Mediation Training program, for instance, designed by the ABA in conjunction with the Boston Law Collaborative, LLC, features multiple opportunities to role-play as a mediator over the course of their five-day training. They cover topics as varied as Domestic Violence Screening, the Psychological Impact of Divorce, Working with Challenging Personalities, Gender and Diversity Issues, and Mediation in the Age of Technology, though nothing specific to disability discrimination. 178

B. RECOMMENDATIONS

1. The New York Dispute Resolution Authority

2. ACCES-VR Mediation System

3. New York State Employment

Require that NYSDRA or any other contracting mediators who will handle disability cases are trained in disability rights principles and laws. In addition to initial orientation and training, periodic continuing education in these areas should be mandatory for mediators working with New York State.  Require that participating mediators receive orientation on accessibility in the mediation process, and access to any support staff needed to ensure accessible participation (such as interpreters).

4. New York State Human Rights Law

CONCLUSION

Mediation programs in New York currently constitute a critical resource, particularly for low-income individuals with disabilities who face economic or disability-based obstacles to other forms of legal action. However, mediation and related forms of alternative dispute resolution in New York state agencies and legal systems must be improved on at least two fronts. First, mediators must be trained and sensitized to working with people with disabilities and must be familiar with fundamentals of disability law. Second, mediation programs must be substantially expanded in order to meet the prospective demand within vocational rehabilitation, and public and private employment. In addition, empirical research is needed in order to assess the effectiveness of existing mediation resources within New York, and to identify barriers to participation and where applicable, reasons for low rates of participation. Better tracking of disability related mediations and surveying of participants will enable development of successful, accessible mediation resources, to the benefit of New Yorkers with disabilities.

2 Central N.Y. Mediation Services, Mediation and Conflict Resolution FAQ in Central NY,http://www.cnymediation.com/mediation-FAQ.htm (last visited Dec. 2, 2010).
3 Ctr. for Disease Control, What Is ADR?, http://www.cdc.gov/od/adr/about.htm (last visited Dec. 2, 2010).
4 Id.
4 The Corporate Partnering Internship, Mediation and Arbitration, http://www.corporate-partnering.com/adr.htm  (last visited Dec. 2, 2010).
5 Equal Emp. Opportunity Comm. et al., Questions and Answers for Parties to Mediation: Mediation and the Americans with Disabilities Act (Mar. 2006), available at http://www.eeoc.gov/eeoc/mediation/ada-parties.cfm (last visited Feb. 2, 2011).
6 Id.
7 ACCES-VR, Special Education Mediation: Real Solutions Where Everyone Wins (2001), available at http://www.p12.nysed.gov/specialed/publications/policy/mediationbook.htm (last visited Feb. 2, 2011)
8 Jessica S. Stepp, How Does the Mediation Process Work?, Feb. 2003, http://www.mediate.com/articles/steppJ.cfm.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.14">
14 James Wall, John Stark, & Rhetta Standifer, Mediation: A Current Review and Theory Development 45 J. Conflict Resolution 370, 381 (2001).
15 Id. at 381-82.
16 N.Y. State Unified Court Sys. Cmty. Dispute Resolution Ctrs. Program Annual Report 2008-2009, at 4 (2009), available at http://www.courts.state.ny.us/ip/adr/Publications/Annual_Reports/AR08-09.pdf.
17 Id.
18 Id. at 29.
19 Id. at 28.
20 NYSDRA, Consumer Programs, http://www.nysdra.org/consumer/consumer.aspx (last visited Feb. 2, 2011).
21 N.Y. State Unified Court Sys. Cmty. Dispute Resolution Ctrs. Program Annual Report 2008-2009, supra note 16, at 30-31.
22 N.Y. State Unified Court Sys. Cmty. Dispute Resolution Ctrs. Program Annual Report 2008-2009, supra note 16, at 15.
23 Mediation Training Inst., State Requirements for Mediators, http://www.mediationworks.com/medcert3/staterequirements.htm (last visited Dec. 2, 2010).
24 N.Y. City Bar Ass'n Comm. on ADR, Report on Mediator Quality (2006), available at http://www.nycbar.org/pdf/report/Mediator%20Quality%20Report%20Final%20%20June%2027.pdf.
25 N.Y. State Unified Court Sys. Cmty. Dispute Resolution Ctrs. Program Annual Report 2008-2009, supra note 16, at 20.
26 Id. at 15.
27 Kenneth Handin et al., New York State Dispute Resolution Association, Inc. Mediator Certification Program (Draft March 2004), available at http://www.nysdra.org/events/certification/cert_draft.pdf.
28 See Cmty. Disputes Resolution Ctrs. Program, New York State United Court System, available at http://www.courts.state.ny.us/ip/adr/Publications/Brochures/cdrcp.pdf;, see also http://www.mediate.com/NewYork/ (providing a directory of private mediators with each attorney's specialization and certifications)
29 Joel Stashenko, Court Establishes First Statewide Guidelines for Mediators, Neutral Evaluators New York Law Journal (Jul. 24, 2008), available at http://www.law.com/jsp/article.jsp?id=1202423217617.
30 Id.
31 Id.
32 Melissa Broderick et. al, ADA Mediation Guidelines, Cardozo J. Conflict Resol., (2000) , available at http://www.cardozojcr.com/ada.html; see also ADA Mediation Articles, http://www.mediate.com/adamediation/ (last visited Jan. 14, 2011); Equal Emp. Opportunity Comm., Questions and Answers for Parties to Mediation, supra note 5.
33 N.Y. State Unified Court Sys. Cmty. Dispute Resolution Ctrs. Program Statistical Supplement 2008-2009, at 19 (2009), available at http://www.courts.state.ny.us/ip/adr/Publications/Statistical_Supplement/SS08-09.pdf.
34 N.Y. State Unified Court Sys. Cmty. Dispute Resolution Ctrs. Program Annual Report 2008-2009, supra note 16, at 30-31.
35 Id.
36 N.Y. State Educ. Dep't Bd. of Regents, http://www.regents.nysed.gov/ (last visited Feb. 2, 2011).
37 N.Y. State Educ. Dep't, Vocational Rehabilitation, http://www.acces.nysed.gov/vr/ (last visited Feb. 2, 2011).
38 ACCES-VR: Rights and Responsibilities-Expectations, http://www.acces.nysed.gov/vr/do/expectations.htm (last visited Feb. 2, 2011).
39 Id.
40 Rehabilitation Act §102(c), 29 U.S.C. § 722 (2006).
41 Id.; 34 C.F.R. § 361.57 (2009) (Amending regulations governing State Vocational Rehabilitation Services Program in accordance with Rehabilitation Act Amendments of 1998).
42 34 C.F.R. § 361.57(a).
43 Id. § 361.57(b).
44 Id.
45 Id.§ 361.57(d)(2).
46 ACCES-VR: Regulation §247, (2003), available at http://www.acces.nysed.gov/vr/current_provider_information/vocational_rehabilitation/NYS_regulations/part_247.htm#administrative_review_mediation_and_impartial_hearing.
47 34 C.F.R. § 361.57.
48 ACCES-VR: Regulation §247.3, available at http://www.acces.nysed.gov/current_provider_information/vocational_rehabilitation/NYS_regulations/part_247.htm#administrative_review_and_mediation (2003).
49 NYSDRA, Vocational Rehabilitation, http://www.nysdra.org/consumer/vocational/vocational.aspx (last visited Feb. 2, 2011).
50 34 C.F.R. § 361.5(b)(2)(xiii) (2009).
51 NYSDRA, Vocational Rehabilitation, supra note 48.
52 34 C.F.R. § 361.57(d)(5).
53 Id.
54 ACCES-VR, Policies and Procedures Manual, available at http://www.acces.nysed.gov/current_provider_information/vocational_rehabilitation/policies_procedures/000_index.htm (last visited Sept. 13, 2010).
55 ACCES-VR:105:00P Due Process Procedure, http://www.acces.nysed.gov/current_provider_information/vocational_rehabilitation/policies_procedures/0105_due_process/procedure.htm#Mediation (last visited Sept. 13, 2010).
56 Id.
57 Id.
58 Id.
59 Id.
60 U.S. Dep't. of Educ., Client Assistance Program, http://www2.ed.gov/programs/rsacap/index.html (last visited Oct. 25, 2010).
61 Office of Special Educ. & Rehab. Servs. (OSERS), Rehab. Servs. Admin. (RSA), http://www2.ed.gov/about/offices/list/osers/rsa/index.html (last visited Oct. 25, 2010).
62 U.S. Dep't. of Educ., supra note 59.
63 ACCES-VR: NYS Client Assistance Program (CAP), http://www.acces.nysed.gov/vr/do/cap.htm (last visited Oct. 8, 2011).
64 Id.
65 Id.
66 Id.
67 ACCES-VR:105.00 Due Process Policy, supra note 55 .
68 Id.
69 Id.
70 Id.
71 Id.
72 Id.
73 ACCES-VR:105.00 Due Process Policy, supra note 55
74 Id.
75  Id.
76 NYSDRA, Vocational Rehabilitation, supra note 48.
77 Id.
78 ACCES-VR:105.00 Due Process Policy, supra note 55.
79 New York Practice Series - Commercial Litigation in New York State Courts, Chapter 46. Alternative Dispute Resolution. 4 N.Y.Prac., Com. Litig. in New York State Courts § 46:5 (2d ed.).
80 34 C.F.R. § 361.57(k) (2009).
81 N.Y. State Unified Court Sys., supra note 33, at 11.
82 Id. at 28.
83Rehab. Servs. Admin., Annual Review Report: Vocational and Educational Services for Individuals with Disabilities, tbls. 25 & 26 (2008), available at http://rsa.ed.gov/view.cfm?rsaform=ARR&state=NY&fy=2008&grant=H126A080047#sec02.
84 Id.
85 Id. at tbl. 26.
86 N.Y. Civ. Serv. Law § 200 ("Creating a public employment relations board to assist in resolving disputes between public employees and public employers" ).
87 N.Y. State Pub. Emp. Relations Bd., Voluntary Grievance Arbitration: Staff Grievance Med-Arb , http://www.perb.state.ny.us/Vga.asp(last visited October 27, 2010).
88N.Y. State Pub. Emp. Relations Bd., Impasse Procedures, http://www.perb.state.ny.us/imp.asp (last visited Nov. 19, 2010).
89 29 U.S.C. § 2938 (2006).
90 Id. § 2941; N.Y. Lab. Law § 850 (McKinney 2010).
91 N.Y. State Dep't. of Labor, Mediate Workforce Investment Act Discrimination Complaints, available at http://www.labor.state.ny.us/agencyinfo/moa/pdf/element8/NYSDOL%20Mediation%20Brochure.pdf (last visited Sept. 23, 2010).
92 NYSDRA, Labor Mediation, http://www.nysdra.org/consumer/labormediate.aspx (last visited Feb. 2, 2011).
93 29 C.F.R. § 37.4 (2009).
94 See N.Y. State Dep't of Labor, New York State Workforce Development System 2008 Annual Report at 5, available at http://www.doleta.gov/performance/results/AnnualReports/PY2008/NY_Annual_Report_2008.pdf (last visited Sept. 23, 2010).
95 Id. at 16-19.
96 NYSDRA, Labor Mediation, supra note 92.
97 Id.
98 Id.
99 NYSDRA, Find a CDRC, http://www.nysdra.org/consumer/findcdrc.aspx. ("[A] Community Dispute Resolution Center (CDRC) is a nonprofit organization that provides a variety of services, including mediation, conciliation, group facilitation, arbitration and education. These centers are located throughout New York State and offer services to all 62 counties." )
100 NYSDRA, Labor Mediation, supra note 92. See also Workforce Development System Technical Advisory #02-6, including attachments, at http://www.labor.state.ny.us/workforcenypartners//ta/ta02-6.htm (providing a full description of how New York handles discrimination complaints brought under the WIA published by NYSDOL).
101 N.Y. Exec. Law § 290(1) (McKinney 2010).
102 Id.
103 N.Y. Exec. Law § 297(3)(a).
104 Interview with John Herrion, Director of Director of Disability Rights in the New York State Division of Human Rights, (9/10/10) [hereinafter "Herrion Interview 1"].
105 Interview with Jyll Townes, Deputy Commissioner for Regional Affairs in the New York State Division of Human Rights, (9/10/10) [hereinafter "Townes Interview"].
106 Id.
107 Correspondence with Leon Dimaya, Regional Director, Lower Manhattan Office of the Division of Human Rights (2/10/11).
108 N.Y. Exec. Law § 297(3)(a) (2010).
109 Id.
110 Id.
111 Id.
112 N.Y. Exec. Law § 297(3)(b).
113 Id. §§ 297(7) & 299.
114 Id. § 297(3)(c).
115 N.Y. State Div. of Human Rights, 2007/2008 Annual Report, http://www.dhr.ny.gov/pdf/annualreport_2007-08.pdf (last visited Nov. 19, 2010).
116 N.Y. Exec. Law §297(3)(a) (McKinney 2009).
117 N.Y. State Div. of Human Rights, http://www.dhr.ny.gov/ (last visited Aug. 3, 2012).
118 N.Y. Exec. Law § 290(3) (McKinney 2010).
119 N.Y. State Div. of Human Rights, supra, note118.
120 Correspondence with Roberto Chavez, Human Rights Expert I, New York State Division of Human Rights (Sept. 16, 2010, 2:42 PM), (on file with BBI).
121 Id.
122 N.Y. State Div. of Human Rights, Annual Report Fiscal Years 2008-2010 (Dec. 2010), available at Dhr.state.ny.us/pdf/nysdhr-annual-report-fy08-09-10.pdf
123 Correspondence with Division of Human Rights (Aug. 3, 2010) (on file with BBI).
124 Correspondence with Division of Human Rights (Sept. 14, 2010) (on file with BBI).
125 Id.
126 Id.
127Equal Emp. Opportunity Comm., Charges, supra. note 130.
128 Id.
129 Bill No. 5293, Assem., 231st Reg. Leg. Sess. (NY 2009).
130 Bill No. 5293, § 1-a(f); N.Y. Exec. Laws. §§ 292, 297 (McKinney 2010).
131 Bill No. 5293, § 1-a(f).
132 Communication with Rebecca A. Merrill, Legislative Assistant, Office of Assemblyman Joseph D. Morelle (Feb. 2, 2011) (on file with BBI).
133 Enforcing the ADA: A Status Report from the Department of Justice October - December 2009, at 9, available at http://www.ada.gov/octdec09.pdf (last visited Feb. 14, 2011); Department of Justice, ADA Mediation Program, http://www.ada.gov/mediate.htm.
134 Department of Justice, ADA Mediation Program, http://www.ada.gov/mediate.htm.
135 See Key Bridge Foundation, ADA Mediation Facts, http://www.keybridge.org/ADA/ADA_Facts.htm.136">
136 Contracts to Key Bridge Foundation for Education & Research (FY 2008), OMB Watch, http://www.fedspending.org retrieved Feb. 10, 2011.
137 Enforcing the ADA: A Status Report from the Department of Justice October - December 2009, at 9, available at http://www.ada.gov/octdec09.pdf (last visited Feb. 14, 2011).
138 Department of Justice, ADA Mediation Program, http://www.ada.gov/mediate.htm.
139 Enforcing the ADA: A Status Report from the Department of Justice October - December 2009, at 9, available at http://www.ada.gov/octdec09.pdf (last visited Feb. 14, 2011).
140 Key Bridge Foundation, ADA Mediation Facts, http://www.keybridge.org/ADA/ADA_Facts.htm.
Key Bridge Foundation, Questions commonly asked about the US DOJ ADA Mediation Program, http://www.keybridge.org/ADA/ADA_faq.htm.
142 Carrie G. Donald & John D. Ralston, Training Day:  Mediation of ADA Disputes, 57(3) Dispute Resolution Journal 56, 60 (2002); see also Key Bridge Foundation, Mediation Course Descriptions, http://www.keybridge.org/basic_mediation_class_description.htm.
143 Key Bridge Foundation, Standards of Conduct for ADA Mediation at Key Bridge Foundation, http://www.keybridge.org/ADA/ADA_KBF_practice_standards_mediators.htm.
144 Id.; Equal Emp. Opportunity Comm.,  An Evaluation of the Equal Employment Opportunity Commission Mediation Program, at pt. IV (Sept. 20, 2000), http://www.eeoc.gov/eeoc/mediation/report/chapter4.html (last visited Feb. 2, 2011).
145 E. Patrick McDermott, et al. An Evaluation of the EEOC Mediation Program. (Sept. 2000). http://www.eeoc.gov/eeoc/mediation/report/chapter8.html (last visited Sept. 10, 2010).
146 Id.
147 Equal Emp. Opportunity Comm. et al., Questions and Answers for Mediation Providers: Mediation and the ADA, http://www.eeoc.gov/eeoc/mediation/ada-mediators.cfm (last visited Sept. 10, 2010).
148 Id.
149 EEOC Mediation Statistics FY 1999 through FY 2009, http://www.eeoc.gov/eeoc/mediation/mediation_stats.cfm
150 Id.
151Id.
152 ADA Charges FY 1997- FY 2010, http://www.eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm
153 N.Y. State Workers Comp. Bd., Claimant's Guide to the Conciliation Process, Form CD-11, available at http://www.wcb.ny.gov/content/main/forms/cb11.pdf.
154 N.Y. State Workers Comp. Bd. Rules & Regulations, § 312.1 McK.Consol.Laws, Book 64 App.
155 N.Y. State Workers Comp. Bd, Claimant's Guide, supra note 162.
156 9 Cal. Admin. Code § 7353.6 (West 2011).
157 Id.
158 Id.
159 Ky. Personnel Cabinet,Workforce Relations Branch, Kentucky Employee Mediation Program, http://personnel.ky.gov/emprel/kemp/ (last visited Feb. 2, 2011).
160 Id.
161 Id.
162 State Employee Grievance Procedure Act (South Carolina), Art. 5, §8-17-310, available at http://www.jobs.sc.gov/OHR/employee/OHR-griev-act.phtm.
163 S.C. Office of Human Res.s, State Employee/Employer Alternative Dispute Resolution, http://www.jobs.sc.gov/OHR/employer/OHR-state-adr.phtm.
164 Colo. Dep't of Pers. & Admin., Mediation, http://www.colorado.gov/cs/Satellite/DPA-EO/DEO/1214905947289; State of  Nev. Dep't of Pers., State of Nevada Employee Mediation Policy, http://dop.nv.gov/PolicyforMediation.pdf.
165 Conn. Gen. Stat. Ann. § 46a-83b(a) (West 2010).
166 Id. § 46a-83b(b).
167 Id. § 46a-83b(e).
168 Judy Filner et. al. ABA Section of Dispute Resolution; Report on Mediator Credentialing and Quality Assurance (Oct. 2002), available at http://www.abanet.org/dispute/taksforce_report_2003.pdf.
169 Am. Bar Ass'n, Report on Mediator Credentialing and Quality Assurance 13 (2002), http://www.abanet.org/dispute/taksforce_report_2003.pdf
170 Am. Bar Ass'n, Model Standards of Conduct for Mediators 3 (2005), available athttp://www.abanet.org/dispute/news/ModelStandardsofConductforMediatorsfinal05.pdf.
171 Lee Jay Berman, Economic Recovery Resources from the ABA Section of Dispute ResolutionRecession Advice for Mediators,http://www.abanet.org/dispute/economicrecovery/recession.html.
172Am. Bar Ass'n, supra note 179, at 7.
173 Id. at 36.
174 Id.
175 Id. at 39.
176 Id. at 2, 4, 5, 11 & 12.
177 Id. at 24-26.
178 Am. Bar Ass'n, 40-Hour Family Mediation Training, available at http://www.abanet.org/family/events/mediation10.shtml (last visited Feb. 2, 2011).

Contact Information

Burton Blatt Institute at Syracuse University
900 S. Crouse Avenue
Crouse-Hinds Hall, Suite 300
Syracuse, New York  13244-2130
315.443.2863 (voice)
315.443.9725 (fax)
bbi.syr.edu

Partnering Organizations

New York State Office of Mental Health

Employment and Disability Institute (Cornell University)

  OMH New York State Office of Mental 
Health Burton Blatt Institute 
Syracuse University Cornell University ILR School K. Lisa Yang and Hock E. Tan Employment and Disability Institute

New York Makes Work Pay is a Comprehensive Employment System Medicaid Infrastructure Grant (#1QACMS030318) from the U.S. Department of Health and Human Services (DHHS), Centers for Medicare and Medicaid Services (CMS) to the Office of Mental Health (OMH) on behalf of New York State. It is a joint effort of the Burton Blatt Institute at Syracuse University (BBI) and the K. Lisa Yang and Hock E. Tan Employment and Disability Institute at Cornell University (EDI) with the collaborative support of the Employment Committee of the New York State Most Integrated Setting Coordinating Council (MISCC) to develop pathways and remove obstacles to employment for New Yorkers with disabilities.