harris on ada mediation

Harris on ADA Mediation

On SSRN, Seth Harris has just posted Disabilities Accommodation,

Transaction Costs, and Mediation: Evidence From the EEOC's Mediation

Program, an interesting empirical study. The abstract:

This paper examines whether mediators' job is different and more

difficult when workers and employers are negotiating over a

disabilities accommodation issue as compared with negotiations over

other employment discrimination issues. The mediator's job includes

getting the parties to exchange information, and at times acquire

information, and to accept the new information as relevant to their

expectations about the negotiation's results. This paper focuses on

transaction costs in disabilities accommodations negotiations that

might make this aspect of the mediator's job more difficult.

Specifically, if the information needed in disabilities

accommodations negotiations is more complex, more extensive, and

more closely held by the parties, the mediator's job in those

negotiations will be more difficult.

There are several grounds for speculation that the mediator's role

in disabilities accommodations negotiations is different. First,

workers' rights and employers' responsibilities under the ADA's

accommodation mandate are more ambiguous and contingent than under

most other anti-discrimination statutes. Second, and closely

related, employers may enter negotiations with a bias against

accommodations claims. Third, although common to many negotiations,

bilateral asymmetric information may be a particular problem in

disabilities accommodation negotiations.

Finally, finding an effective and efficient accommodation can be a

vastly more complex undertaking than, for example, calculating and

remedying a discriminatory pay differential or redressing a

discriminatory firing or demotion decision.

Using data from the U.S. Equal Employment Opportunity Commission's

mediation program, this paper offers preliminary evidence regarding

differences between disabilities accommodation negotiations and

negotiations over other employment discrimination issues. It offers

an original analysis of a data set constructed by E. Patrick

McDermott and his co-authors from a survey of participants in the

EEOC's mediation program. The participants' responses offer

indirect evidence of differences in the informational transaction

costs that arise in disabilities accommodations negotiations and

negotiations over other employment discrimination issues.

The legal literature identifies three methods that mediators use to

overcome informational transaction costs: (1) mediators improve

information exchange; (2) mediators help to de-bias negotiations;

(3) mediators serve as bridges to information about solutions to

accommodations problems and, in selected cases, propose solutions

that the participants would not or could not propose themselves.

Participants were asked to react to five favorable statements about

their mediators that were reasonable proxies for these techniques.

I found statistically significant, if small, differences between

the responses of participants in disabilities accommodations

negotiations and participants in negotiations over other kinds of

employment discrimination issues. This evidence suggests that

mediators have a more difficult time using these techniques to

overcome transaction costs in disabilities accommodation

negotiations. Thus, because they are harder to overcome, we can

deduce that there is something different about informational

transaction costs in disabilities accommodations negotiations.

The evidence suggests three conclusions about what the differences

are. First, information exchange is more difficult in disabilities

accommodations negotiations. Second, the mediators' role in

proposing solutions and providing information about possible

solutions is more critical to disabilities accommodations

negotiations. Finally, disabilities accommodations negotiations are

more likely to be stalled and frustrated by employers' biases