Advocating Effectively to Resolve Disputes
By: Patricia H. Latham
Some years ago a woman said that she wanted to bring a class action lawsuit. It turned out that she thought that a class action was essentially a means by which she could group all the people who have ever wronged her together into a class and sue them! A class action actually means that plaintiffs form a class to sue someone.
On reflection, her idea has a certain emotional appeal! Can you imagine the simplicity of gathering together everyone who has ever wronged you and suing them all at once? What this drives home is the fact that suing people all too often is a way to vent anger. Many times people have said: "I am angry with my employer and I want to sue." Suing should not be the first action taken, but rather a last resort used when we have tried other means of dispute resolution, those means have not been productive, and we truly have a meritorious case.
What are the means of resolving disputes? Those means include: informal advocacy, mediation, arbitration, and formal filings with courts or governmental departments or agencies.
Advocacy is the first approach to resolving disputes without suing people. The discussion will be in the context of individuals with learning disabilities and ADHD, but the points have a broader application, as well.
Individuals with learning disabilities, ADHD and other cognitive disorders may have legal rights in particular contexts. They also have responsibilities. Once in adulthood, it is up to each individual to make his or her way through life in the best possible way and to take on the responsibility to do so. Parents, educators and other involved professionals should prepare children to take on this responsibility and to be as effective as possible in academic skills, core job related skills, social skills, and advocacy skills.
- Know yourself
- Understand others
- Select a good match
- Use strategies to promote success
- Familiarize yourself with applicable laws
- Advocate effectively
To know yourself is not just to know about your learning disability, ADHD or other condition. It is to know all of your characteristics – your cognitive strengths, personal qualities, interests, as well as your impairments. In every individual there is a complex coming together of all of these factors. Every individual truly is unique. By looking at the whole picture, individuals can make better choices in life, avoid some problems, and bring about more successful outcomes.
As important as it is to understand yourself, it is also important to understand other people. Listen to what others say and watch facial expression and body language. If in doubt, discussion with a family member, friend or professional may prove helpful.
If you are trying to persuade another person to see something your way, try to view the situation from that person's perspective and to understand that person's thinking. This understanding may lead you to rethink, and possibly revise, your own view and may help develop arguments to persuade the other person to move toward your position.
Select a good match
Selecting a good match in education and employment requires knowing yourself and understanding all of the requirements of the academic program or career or particular job. Armed with that information, the individual can make the best possible match. Sometimes, a poor match is obvious. A person who processes very slowly would not be good match for a job as an air traffic controller. On occasion, the problem in the match is subtle. One person who was excellent in sales but poor at organizing and keeping records discovered that his sales job involved a considerable record-keeping component.
Understanding of an educational program or a job can be gained by reading pertinent material, such as college catalogs and employer job descriptions, and by listening carefully to interviewers, employees or students, and others who may be knowledgeable about the program or job. All of those requirements must then be considered in light of the all aspects of the individual.
This thorough process of reviewing educational program or job requirements is well worth the time and effort, as a good match is central to minimizing problems, gaining ultimate success, and reducing the likelihood of disputes.
Use strategies to promote success
One basic strategy is to set a goal for yourself. The goal may be short term or long term. The goal should be realistic, taking into account knowledge of yourself and of what is required to achieve the goal. A short-term goal may be to graduate from a community college criminology program or to hold a job as a receptionist for at least one year. A long-term goal may be to enter the Army as a career and complete 20 years of service.
A second basic strategy is to prepare to handle setbacks in achieving goals. If you are fired from a job in six months that you had planned to hold for one year, how do you handle that? There are at least two possible ways to view what occurred. First, the job may have been a poor match, in which case, view the firing as a step in the learning process that ultimately will facilitate finding a better match, Second, the job may have been a fairly good match but perhaps your own conduct led to the firing, in which case you need to understand what went wrong and what could be done the next time to promote a successful outcome. We cannot completely control having setbacks, but we can decide how we will react to them.
Familiarize yourself with applicable laws
Effective advocacy requires knowing the law and its application to the particular situation, so that you are able to understand the strong and weak points of your position and to evaluate realistically possible resolutions in the event of a dispute. A key element, under the ADA and Rehabilitation Act (RA), is establishing that the person seeking the protection of the law is a person with a disability. Proper disability documentation is of critical importance under these laws.
Most documentation involves three steps: diagnosis, evaluation of impact, and recommendations. Together, they establish for purposes of RA/ADA 1] a disability, which involves establishing the existence of an impairment and substantial limitation in a major life activity, 2] the areas of functional impact and degree of impact resulting from the disability, and 3] the specific reasonable accommodations, required because of that disability, that will enable the individual to perform the essential job or program functions.
It is not simple to establish disability status under the ADA and the Rehabilitation Act. Essentially, the individual must show that he or she has an impairment that substantially limits a major life activity, such as learning. Performance or manner of performance is compared to the average person in the population and takes into account the positive and negative effects of any medication and compensatory strategies. The substantial limitation must have broad impact and not be confined to one narrow area. For example, a problem with learning in physics class, but not in other classes, would not amount to a substantial limitation in learning.
It is not enough to show that the individual achieves below the level we would expect of that individual compared to the individual's own ability. The comparison is to the average person in the general population.
Finally, the documentation and recommendations, while establishing substantial limitation in a major life activity, must not at the same time show that the person is unqualified for the program or job. There have been many instances in which the person's documentation of a disability has also shown lack of qualification for the program or job.
Advocacy takes place in various settings, ranging from an informal conversation to formal written presentations. The steps would be: (1) informal communication, such as a causal conversation), (2) formal communication, such as a meeting called for a set purpose or a letter setting forth a position, (3) negotiation between two parties in which there is a presentation of positions, involving a marshaling of facts and arguments based on those facts, in a structured meeting or in writing, (4) alternative dispute resolution, which includes mediation and arbitration, (5) litigation in court or formal filing of a complaint or charge with an appropriate government entity. In each of these settings, we or our attorneys are seeking to persuade someone of the validity of our position. Initially, it is another party, Later it may be an arbitrator, hearing officer, or judge.
To advocate is to urge or champion a position through persuasion. How do we persuade others to agree with our position? It is necessary to: (1) have a clear understanding of our own position, (2) understand the thinking of those we wish to convince, (3) urge our position by making points that will appeal to the thinking of those we wish to persuade and by using a pleasant and non-confrontational style.
Remember that an angry confrontational argument may vent our own emotions but may fail to persuade others. It is important to focus on the goal: persuasion.
When should you turn to arbitration, sue in court, or file a formal complaint with a government department or agency? Timing is everything. If you do not have a strong legal position, generally it is not prudent to sue. Continue efforts to work out something, even if it is an agreement on how you will exit your job or academic institution. In many cases that are lost in court by a plaintiff alleging disability discrimination, a settlement was offered to a plaintiff and rejected. Then, the plaintiff subsequently lost the case in court. If you have a strong legal position, you could get tough if (a) all efforts at persuasion have failed and/or (b) time constraints require immediate action.
By Patricia H. Latham, J.D., based upon a book co-authored by her and Peter S. Lantham: "Learning disabilities / ADHD and the Law in Higher Education and Employment". Patricia Latham is an attorney, arbitrator, and mediator in Washington, D.C. and has co-authored eight other books on education and employment topics.