Mediation attorney. No hourly fee. If your case doesn’t settle, you don’t pay.
 
If someone has filed a claim of  discrimination before the California Civil Rights Division (CRD), or the Equal Employment Opportunity Commission (EEOC), or if they have a mediation agreement in their employment or housing contract, they may have an opportunity to negotiate a settlement of their claim at an early stage through the process of mediation.
 
Do you need an attorney to represent you at the mediation?
 
Here are some considerations:
1. Do you expect the other side to have an attorney present?
2. Is the value of your claim more than $10,000?
3. Do you feel you need help understanding the settlement value of your claim and negotiating?
 
If the answer is Yes to these questions, you’re better off having an attorney represent you at the mediation.
 
Most attorneys will not represent someone at a mediation unless they are paid an hourly fee up front, or unless they expect to file a lawsuit if the case does not settle. Finding a attorney, who will work on a contingency fee on short notice is not easy.
 
Good news. For 25% of the settlement, my firm can provide representation at the mediation. If there is no settlement, there is no fee.
 
What does that representation include?

• Client interview to learn the facts.
• Preparation of a mediation (legal) brief for the mediator
• Representation at the mediation.
• Review of the settlement agreement if the case settles.

 
Our attorneys are highly skilled at negotiating discrimination claims for employment, housing, and disability.
 
Contact us for a free case evaluation.
 
       [email protected]
 
   -    SE HABLA ESPANOL
          

​Picture this...
An employee tells his supervisor that he wants to leave early because, “The lighting in here combined with my vision issues is really giving me a headache.”  The supervisor says, “Okay, you can go.” Said and done, right? (Can't write an article if this is true, so let's look more closely.) 
 
The employee’s statement might be enough to trigger an inquiry as to the need for Reasonable Accommodation. The employee complained of a problem at work (lighting) that is negatively affecting his disability (vision problems). The supervisor should not take a wait-and-see approach on whether the problem arises again, but instead, act proactively. I have seen too many cases where the employee says I constantly complained to my employer but he didn't do anything, and the employer's attorney says ah hah - there is your notice to the employer. 
 
There may be accommodation available to help the employee do their job affectively such as changing the lighting. When a supervisor is appropriately sensitized to such subtle requests, she can help the company avoid a claim for failure to accommodate and a possible workplace injury.
 
Having a clearly stated written policy on Reasonable Accommodation in the employee handbook is a simple matter of cut and paste. Most conflicts arise out of a failure to implement the policy effectively.
 
Reasonable Accommodation policies can’t be implemented unless there are people who know what they mean, how to use them, and when to use them. Simply, without thorough training, the policy is useless. 
 
Training should be ongoing, targeted to anyone who might need it, updated regularly, and most of all, interactive. 
 
Annual training is a must and should include what came up in the past year. And don’t forget about training new hires, or employees who are temporarily assuming a position where Reasonable Accommodation might come into play. 
 
One frequent area of oversight is when there is a crossover from Worker’s Compensation. The employee is out on Worker’s Compensation leave but wants to come back to work. The person in charge of the leaves of absence needs to understand when the ADA Reasonable Accommodation policy may be coming into play (as when, for instance, an employee wants to return to work with a reduced schedule or light duty), before the employee is considered “permanent and stationary” in the Worker’s Compensation action. Telling the employee they can't come back to work until they can perform at full capacity is often a violation of the ADA.
 
Like the example I started with, lawsuits result from a failure to recognize when the Reasonable Accommodation policy might need to be implemented. This is usually because the supervisor or HR was told about the policy but was not given interactive training with the policy. Such interactive training will include role-playing and exploring various scenarios involving various types of disabilities. 
 
Supervisors are most commonly on the front line when it comes to getting requests for Reasonable Accommodation. They come in unusual forms - this may be because often employees don't recognize they need one.  Nevertheless, even an offhanded remark might be sufficient to put the employer on notice of the need for accommodation. The protections of the Americans with Disabilities Act are far reaching and extend to anyone who has a physical or mental impairment that affects their activities of daily living. Yet many employees are not even aware that they have a disability, let alone that they are entitled to accommodation, if necessary, to effectively do their job. In contrast, employers have superior knowledge, training, and expertise when it comes to Reasonable Accommodation especially, since they are regularly confronted with disability related requests.
 
 
Closing the loop. The interactive process is dynamic and never the same. Every encounter with an employee seeking Reasonable Accommodation is a knowledge building experience. An employee may be confronting their own disability for the first time and/or they may not be used to advocating for themselves. They may not know what they need to do the job effectively. They may be worried about asking for too much and being told no. Or they may worry about asking for too little and therefore risk failing. They may not know what they can ask for. They may not know how to ask. They may not know whether what they need is temporary or long-term. They may feel that the employer is needlessly intruding on their privacy by asking for more information, or that they are putting their doctor-patient relationship at risk by asking the doctor to do too much paperwork to satisfy the employer.
 
Every one of these situations can lead to a breakdown of the interactive process resulting in a lawsuit. Learning from each experience and adding to one’s knowledge base is the surest way to avoid unnecessary litigation and to provide a satisfactory outcome for all parties. 
 
David Geffen is an expert consultant on Reasonable Accommodation issues in Employment and Housing, practicing throughout California.

www.davidgeffenmediation.com

  In today's evolving work landscape, the desire for flexible work arrangements has gained significant importance. The California Fair Employment and Housing Act (FEHA) recognizes an employee's right to work from home as a reasonable accommodation. This provision aims to ensure equal opportunities and promote inclusivity in the workplace. Let's delve into the details of this important right.

Understanding the law that protects you in the workplace and provides your right to reasonable accommodation- the California Fair Employment and Housing Act: The California Fair Employment and Housing Act prohibits workplace discrimination based on various protected characteristics, such as disability, gender, religion, and more. It requires employers to provide reasonable accommodations to qualified employees with disabilities to enable them to perform essential job functions.
Work from Home as a Reasonable Accommodation: Under the FEHA, an employee's right to work from home may be considered a reasonable accommodation for individuals with disabilities. If an employee's disability prevents them from effectively performing their job on-site, working from home can be an alternative solution. The employee must demonstrate that the accommodation is necessary and reasonable to perform the essential functions of their role.

Reasonable Accommodation Criteria: To establish the need for a work-from-home accommodation, employees must fulfill certain criteria:

1. The employee has a qualifying disability recognized under the FEHA.
2. The accommodation allows the employee to perform essential job functions effectively.
3. The requested accommodation does not cause undue hardship on the employer.

​Working out your accommodation with the employer- The Interactive Process: When requesting work-from-home as a reasonable accommodation, employees and employers must engage in an interactive process. This involves a meaningful conversation to determine the appropriate accommodation that balances the employee's needs and the employer's operational requirements. Employers must explore alternative accommodations if working from home is not feasible in certain circumstances.

The California Fair Employment and Housing Act safeguards the rights of employees with disabilities, ensuring equal access to employment opportunities. The act acknowledges an employee's right to work from home as a reasonable accommodation, provided it aligns with essential job functions and does not impose undue hardship on the employer. By embracing flexible work arrangements, employers can foster an inclusive work environment, enhancing productivity and job satisfaction for all employees.

Contact:  DavidGeffenmediation.com

An employer is not  required  to request medical documentation as part of the interactive process under the ADA. The employee requesting    accommodation is often the best source of information about his or her medical impairment and limitations. Use logical judgment in deciding when to request the information. If the disability and need for accommodation are obvious, move-on to identify and implement accommodation solutions.
​Q: When is medical documentation sufficient to determine if the employee has a disability and needs an accommodation?
A: Documentation is sufficient if it substantiates that the individual has a disability and needs the reasonable accommodation requested. Sufficient medical documentation should describe the nature, severity, and duration of the impairment, the activity or activities that the impairment limits, the extent to which the impairment limits the employee's ability to perform the activity or activities, and should also substantiate why the requested reasonable accommodation is needed.
For a sample request for medical information, see   JAN's A to Z: Medical Exams and Inquiries.  Employers should customize this form on a case-by-case basis depending on the information that is needed.
For EEOC's guidance on medical documentation in response to an accommodation request, see question 6 in Reasonable Accommodation and Undue Hardship under the ADA.
 
Source: https://askjan.org/articles/Requests-For-Medical-Documentation-and-the-ADA.cfm
 

   Here is some helpful guidance for the workplace at the intersection of ADA* and the Pandemic.
​   Part I
    Backstory... The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.  …Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.
Key points -   testing

• The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard

A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?   (3/17/20)
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. …
A.4. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (3/17/20)
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
A.5. When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty? (3/17/20)
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees… new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. …
A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)
Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.
An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions. …

           *     Title I of the ADA applies to private employers with 15 or more employees, state and local government employers, employment agencies, and labor unions. The Equal Employment Opportunity Commission provides laws, guidance, and technical assistance for implementation of the ADA.      
 

• All EEOC materials related to COVID-19 are collected at   www.eeoc.gov/coronavirus.
• *Source - What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Technical Assistance Questions and Answers - Updated on December 14, 2021.

 
 

     Helen, a paraplegic, lives in a housing development. She can't get in to the clubhouse because it has two steps. Her claim against the Homeowners Association to provide access to the clubhouse is in mediation.
     Meeting privately with the mediator, the Homeowners Association says putting in a lift or ramp is completely unnecessary - there are so many friendly people going to the monthly meetings it would be easy for Helen to just ask people to carry her and her wheelchair inside.
     What should the mediator do?:
A) Communicate the proposal to Helen and her attorney as a possible reasonable modification;
B) Inform the Homeowners Association that this suggestion would illegally require Helen to ask others for help rather than using the clubhouse independently as other homeowners do;
C) Explain that this may be offensive to Helen and could undermine the negotiations.
Answer: B and C
     To avoid derailment of your ADA or Housing Discrimination mediation, look for these three attributes in your mediator:
1. Knowledge of Disabilities. Your preferred mediator understands how a disability affects the individual and how the disability might be accommodated in the workplace or housing without undue burden. People with disabilities facing accessibility issues frequently feel like their needs are not understood. So find a mediator who instills confidence in the claimant that the mediator “gets it”. Cases are more likely to settle when both sides feel understood.
2. Disability Access. This is not just knowledge of building standards, but also an understanding of policy modifications, the interactive process dance, and balancing of the rights of individuals with legitimate business needs.
3. Disability Law. This means general knowledge of the ADA, FHA, and IDEA and their amendments, case law developments, and guidance issued by the regulatory agencies - but also what the laws were meant to accomplish.
     An experienced mediator who has these attributes can effectively explore the range of settlement options, and not take mediation time to learn the law or lead the parties down a dead-end.

David Geffen is a…
ADA Mediator • Reasonable Accommodation Mediator • FEHA Mediator • FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert

     Once upon a time (about two weeks ago at Loyola Law School) three simulated mediations were conducted simultaneously based on identical facts.       

          Facts:    A trucking company claimed that its long time supplier had provided a defective product that damaged the engines of numerous trucks (overhauls out-of-pocket cost $210,000), and would likely continue to cause injury to others (estimated future damages $245,000, plus $110,000 interest). The supplier claimed that it tested the product and its expert concluded there was no way its product could’ve caused the damage.

      First year students played the roles of plaintiff, defendant, and their counsel while practicing mediators mediated in separate rooms. After an hour and a half, all three cases were settled and everyone met to compare results:

Mediation #1 result: $115,000, +50% discount on future supplies, plus public apology for disparaging defendant

          Mediation #2 result: $155,000, plus non-disparagement clause

          Mediation #3 result: $200,000

     What made the difference? Were some students more effective negotiators than others? Or were the mediators influencing the outcomes? The answer is clearly both.

     In Mediation #1, defendant took a hard line on liability and opened with only $10,000, claiming no interest in further ongoing business. After the mediation, we learned that it had set $125,000 as the most it would pay. The mediator challenged plaintiff to assess the likelihood of proving its case. Plaintiff eventually agreed to $115,000 and a future discount because the hope of recouping its losses through future discounts was better than the risk of losing at trial.

     In Mediation #2, both sides presented confidently but the mediator told the defendant that it had a strong defense, garnering the defendant’s trust, allowing her to lead the parties to a settlement that was 25% less than the out-of-pocket damages. They also agreed to a non disparagement clause.

     In Mediation #3, the mediator was evaluative from the outset. Both sides acceded to his valuation, almost 100% of plaintiff's out-of-pocket costs. (This mediator later commented that he saw the Mediation #1 agreement on the 50% discount to be an invitation for further litigation.)

     Here are some surprising takeaways:

1. The highest opening plaintiff’s demand, $700,000 (#1), ended with the lowest cash payment;
2. All the students were satisfied with their outcomes, until they saw the results from other mediations;
3. The most judicial approach ended with the highest cash settlement.

    
          This simulation offered a rare inside glimpse of how varied the outcomes will be depending on: 1) the argument and skills of the advocates; 2) the mediator's approach; and 3) how much influence the advocates allow their mediator to exert.

ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert  

As I prepare for my next class of students at Loyola Law School, I thought I’d find out what you, the mediatees, are thinking. Please help my students better understand litigators’ needs by responding with your answers to three short questions:

1. What do you want most from your mediator? (Please choose only 3 of the following)

A. Knowledge of the subject matter
B. Creative solutions to help settle
C. Tenacity about getting an agreement
D. Low key, low-pressure
E. Patience with the process
F. Wades deep into the facts
G. Provides his/her opinion on settlement value


2. Where do you prefer to get your mediator? (Please choose only 2 of the following)
A. AAA
B. ADR
C. ARC
D. JAMS
E. Judicate West
F. Solo Mediation practice


3. The most optimal time to mediate is? (Please choose only 1 of the following)
A. At the outset of litigation
B. After significant discovery
C. Right before trial


On behalf of my students, I thank you.

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert  

     My clients tell me I’m a great mediator. But if I’m not your mediator, that’s okay. You can still put my skills to work for you as your Mediation Partner.

    Why do you need one? Even the most experienced attorneys are often perplexed by the communications they receive during mediation and frequently ask the mediator for guidance. However, the mediator is providing feedback based upon his or her objective, which is to reach a settlement, and not your objective, to achieve the best results for your client. That's where I can help.

    I understand what mediators do and why they do it. It's kind of like the Magicians Guild.  I can work with you to: 1) prepare a mediation strategy; 2) advance the mediation strategy by attending the mediation with you, analyzing the mediator’s style, communications, and mediation tools that are being employed; and 3) advise you on how to negotiate to achieve the best result for your client. If preferred, I can work anonymously by phone to guide you during the various stages of negotiation.

    Acting as your Mediation Partner, I can give you a competitive advantage and exponentially elevate your settlement results.

    100% Satisfaction Guaranteed. If you are not satisfied with the results, you don’t pay. And, if you’re waiting for settlement funds, I’ll wait too.
     Please call me to talk about tailoring this service to your needs.

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert 

    Congratulations to my co-counsel, Disability Rights California,  celebrating 40 years of advancing an inclusive California.

     As featured in DRC's newsletter this week...

Disability Rights California and disability groups obtain 4,250 accessible, affordable housing units    

We work to make sure people with disabilities can live wherever they choose. Our Civil Rights Practice Group advocates for increasing the stock of affordable and accessible housing through complex litigation and systemic advocacy.

     In 2012, Independent Living Center of Southern California (ILCSC), Fair Housing Council of San Fernando Valley (FHCSFV), and Communities Actively Living Independent and Free (CALIF) joined for a lawsuit against the city of Los Angeles and the former Community Redevelopment Agency for the city of Los Angeles (CRA/LA) to improve accessibility of affordable housing for people with disabilities. Disability Rights California (DRC) and their co-counsel Relman, Dane, and Colfax; Disability Rights Legal Center; and the Law Offices of David Geffen filed the suit on behalf of the three advocacy groups.

    Accessible housing features can include grab bars in bathrooms; doors designed to allow passage of wheelchairs; lower placement of kitchen counters; and visual alarms and tactile controls for people with hearing or vision impairments.

     “For the first time, a city with millions of persons with disabilities, advocates, independent living centers and fair housing, held hands together to yell ‘This is enough,’” said Norma Jean Vescovo, former executive director of ILCSC.

*Read more here: https://www.disabilityrightsca.org/stories/disability-rights-california-and-disability-groups-obtain-4250-accessible-affordable  

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert