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JEAN LAWLER:
Hi, I'm Jean Lawler, it's nice to see you again, and thank you for joining me today. As a mediator, I am honored to be invited into other peoples’ lives for a few hours. Lives–that like all of our lives–are shaped by the many roads that have brought us to our “today”, roads that are leading to the unexpected, and to roads holding the promises of “tomorrow”.
And so that said, let's talk ADA today. I mean most of us probably don’t remember too far back when the sidewalks even–you didn't have the little cutouts so that something on wheels, whether it's a wheelchair or a baby stroller, could easily traverse a street. But the ADA is: Americans with Disabilities Act. It's been in effect since 1990, so more than 30 years. There are a host of federal ADA lawsuits, and I’m focusing now on the Title III suits. Those are the ones involving businesses and nonprofits that are open for public access. And there just have been so many of them. According to a survey by the law firm Seyfarth Shaw, California, in 2021 had 5,930 of these suits filed–federal court, I’m talking about, not state court. New York came in second place with 2,774. Florida came in third at 1,054. Being that I’m in California and that I mediate for the Federal Court, the ADA Program with the Federal Court…You do see that there are a lot of ADA cases, so let’s talk ADA.
What are the components for an ADA case? The fix? And then the money, the damages aspect of it?
So what questions should a mediator know answers to in advance of mediation day? As a lawyer, how and what will help you–to let the mediator know about? And as a mediator, what should you be asking of the attorneys for the parties?
First of all: What are the alleged violations? What are the issues? What needs to be fixed? They may tell you it's a parking lot situation–path of travel, the parking space isn’t correct, the signage may not be right. Maybe it's the interior of the store–counter height or depth or dimensions are not correct. Pay locations might not be correct. Maybe restrooms in buildings are at issue where a wheelchair can’t get under the sink, maybe for washing hands. A restaurant–maybe the tables are not the right dimensions to allow a wheelchair in. You could of course still have restroom issues there, counter issues, things like that.
Hotels–more and more there are more cases involving hotel websites. The question now that’s being challenged is whether the description on the website is legally sufficient or practically sufficient. But is it legally sufficient (is really the question, I suppose) to advise a potential guest of what the room is like?
And then of course, websites…Is the website readable by a screen reader or otherwise? Is it compliant with the Web Content Accessibility Guidelines, which really is WCAG 2.0. So those are the questions and the issues that come up alot in a broad generalization. And you want to know…What kind of a case are you dealing with? Dealing with a website case is very different than dealing with a parking lot, or restaurant, or a store, or whatever. So what are the alleged issues?
Then the second thing is: Have the issues been fixed? Many defense attorneys will advise their clients to fix whatever the problem is immediately, and then maybe there is no more issue. Maybe it has been taken care of, and the ADA–and this is important–because the ADA provides for injunctive relief, and then attorney fees. In California we also have the Unruh damages, the state provision that provides for penalties. But if the issue has been fixed, then presumably there is no issue anymore, and the case could be moot. Maybe it is, maybe it isn’t. But that’s a question you want to know. What’s been fixed and how quickly?
Three: Does either party have a CASp inspector’s report? If you are not in California you might say, “Casp, what’s that?”. Well it’s a “Certified Access Specialist”, and California certifies these access specialists who can come out and they can look then, and they do look at the property, or the location, and they will prepare a report. What is compliant? What’s not compliant? So if a party has a CASp inspector’s report certifying that they are compliant with the ADA, then that’s a very different situation than if they don't. So that’s a question that you would like to ask if either party has a CASp inspector’s report.
And then the next thing would be: The status of the case or the settlement discussions. Is this an early mediation that’s been ordered before discovery has been, even started or let alone completed. Are there motions for summary judgment that might be pending? Has a summary judgment or other dispositive motion been denied? Has supplemental jurisdiction been declined by the court for the Unruh claims? And then of course, have there been prior settlement offers or not? And when I say that supplemental jurisdiction being declined, that would mean if the federal court has not taken jurisdiction of the Unruh damages here in California.
And then the fifth question is: Are there legal issues affecting liability? For example, standing. Standing is a typical response by a defendant and is a legal issue. Whether or not the plaintiff has standing to bring the suit. Again, without giving legal advice, generally these cases involve whether they actually visited the premises, for example, in the first place, and whether they intend to go back, in the second place, because it is injunctive relief to allow the plaintiff to then return to the location. So there are cases up on appeal right now involving standing. And then if it's a hotel website case…Is the “reservation rule” involved? It probably is, but that also is a legal issue that would affect liability.
Can a fix of the architectural barriers be readily achievable? It may be that there’s an old building that is for some reason, not able to be modified, and there are many reasons I suppose. This is why you need the CASp inspector to tell you about a particular building. But if a fix is not readily achievable then that would be a legal issue as to whether or not there needs to be a fix, whether you can settle the case or not.
So those five questions, in simple plain English, if you can let the mediator know about those in advance, answers to those questions in advance, you will already be down the road toward having your mediation–and either settling the case that day or making some headway, but needing to come back after maybe some factual or legal questions are answered, or the case isn’t going to settle for one reason or another, but that gets you off on a good start.
So thanks alot for joining me today. It's a pleasure as always. I’m Jean Lawler. Please feel free to follow me on LinkedIn. Subscribe to my YouTube channel. Listen to my podcast, and follow me or connect on my website. So thank you so much. Bye.
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