Digital Accessibility & Disability Accomodation
Accessibility in ODR
Online Dispute Resolution is increasing the reach of the people towards justice.
As readers know, the “O” in ODR stands for online. We are reminded of the statement made by inventor of the World Wide Web Sir Tim Berners-Lee on the launch of the web accessibility initiative in 1997:
“The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect.” — Tim Berners-Lee
We believe that accessibility is also an essential aspect of ODR. Every element of ODR information and communications technology -- systems, content, and processes -- must be accessible for ODR to be truly universal.
Although many of us may think about alternative dispute resolution (ADR) and ODR as distinct processes, ODR really is just a form of ADR. In fact, the label “Online Dispute Resolution (ODR)” is a little misleading. When most practitioners use the term ODR, they typically are referring to dispute resolution processes that not only rely on the internet but also may be supported or assisted by other technologies as well as “real life” experiences. A more accurate term would be technology-assisted dispute resolution, but the term ODR is typically used.
“Technology” includes everything from telephones to websites, mobile apps, electronic meeting rooms, fax machines, mobile devices, and Near Field Communication. Dispute resolvers have been using some of these technologies “offline” for decades and they are an essential part of our dispute resolution practices.
ODR systems, or “platforms,” already are available that allow parties to resolve their disputes entirely online. ODR system designer may encourage parties to keep every communication on the ODR platform for reasons that include confidentiality and accountability. Dispute resolution professionals, however, may use online tools along with “offline” technologies such as the telephone or even a possible in-person meeting.
All of these technologies and communication options must be accessible. This includes comprehensive ODR platforms where accessibility for all online interactions can be designed and monitored for accessibility.
What’s Law Got to Do With It?
ODR systems must be fully accessible in order to include all potential users around the virtual (or actual) table. But accessibility is not just the right thing for ODR providers to do. It’s also the law both in the United States and, increasingly, around the globe.
A full analysis of the legal foundation for accessible ODR platforms, systems, and content is beyond the scope of this article. Here are but a few examples of law and policy mandating accessibility around the world that ODR systems designers must be aware of.
• The United Nations Convention on the Rights of People with Disabilities (UNCRPD) is a treaty ratified by more than 170 nations (although not the United States) that includes obligations for digital accessibility. Among other things, Article 9 requires signatories to “promote access for persons with disabilities to new information and communications technologies and systems, including the Internet.” Article 21 includes the obligation of “Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions.” And And Article 13 ensures effective access to justice for persons with disabilities.
• Governing bodies around the world are increasingly mandating that digital properties and content be accessible. The Web Accessibility Initiative of the World Wide Web Consortium (W3C) maintains a list of international accessibility laws and policies.
• Courts in the United States increasingly recognize that the Americans with Disabilities Act (ADA) is flexible enough to embrace the online world. The ADA covers the activities of state and local governments, including court systems, where ODR can be a great benefit to the public. And it ensures that disabled people can fully participate in all that private public accommodations offer. Online dispute resolution is one such offering. The ADA’s “effective communication” obligations for both public and private covered entities is also a strong piece of the legal foundation requiring accessible ODR.
While specific digital accessibility regulations have not yet been incorporated into Americans with Disabilities Act, courts have begun to recognize the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA as the most well established method of meeting the ADA’s non-discrimination provisions when it comes to websites. (See, for example, the court order in a web accessibility case against Five Guys Enterprises, LLC.) WCAG 2.0 AA has been the identified accessibility standard in almost all private settlement agreements and those resolved by the United States Department of Justice.
• Section 508 of the Rehabilitation Act of 1973 requires that all United States government technology purchases be accessible. Most states in the U.S. have similar procurement statutes. Government purchases of ODR systems, including purchases by court systems, will only increase in the coming years.
Best Practices for Digital Accessibility in ODR
Accessibility is the law, and it’s the right thing to do to fulfill the promise of ODR. Here are some core smart practices to make sure ODR systems are accessible.
• Adopt an Accessibility Standard: The international standard for web, mobile, and document accessibility is WCAG 2.0 Level AA and is our recommended standard for all ODR systems. WCAG 2.0 AA and any successor guidelines promulgated by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (w3c) should be integrated into all ODR processes to ensure accessible content. System authoring tools must also be accessible. WAI’s authoring tools guidelines address this important component of ODR systems.
• Read and comply with ODR principles and standards. Although ODR still is in its early stages, already significant work is being done to ensure that ODR increases access to justice for everyone. Much of the attention has focused on differences in power and sophistication that may exist between the disputing parties. Understanding and addressing these concerns will protect everyone, including persons with disabilities.
The International Council for Online Dispute Resolution (ICODR), building on The National Center for Technology and Dispute Resolution’s “Principles for ODR Practice,” has identified Ethical Standards for ODR. Many of these Standards provide support for digital accessibility design features.
What to do?
• Designate a digital accessibility coordinator. Put someone in charge of accessibility so the buck has somewhere to stop. Decide carefully where that person sits. At Microsoft, Chief Accessibility Officer Jenny Lay-Flurrie has a C-Suite position. In his 2011 book Strategic IT Accessibility: Enabling the Organization, author Jeff Kline urges a “neutral placement” of the accessibility head so the position can reach across all the different silos that comprise today’s organizations. To ensure that accessibility moves beyond compliance, take care to think broadly and avoid automatic placement in the legal or risk department.
• Include accessibility in all requests for proposals involving digital content and technology: The Americans with Disabilities Act prohibits discrimination “directly, or through contractual, licensing, or other arrangements.” In the context of the digital world this means making sure all vendors understand accessibility. Language that technology vendors “following the law” is not enough. Organizations must specify accessibility standards in every RFP and require testing by disabled people (see below) before product delivery.
• Include accessibility in all technology contracts: Once a contract is awarded, accessibility requirements must be described with specificity. Think about the level of detail demanded with security and privacy requirements and use that same high standard with accessibility. In the Winn-Dixie order (currently on appeal and stayed pending a bankruptcy filing), the judge found that “the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.” Read more about best practices for technology vendor contracts.
• Train staff (and maintain training): Training staff about digital accessibility is not only about educating coders, designers, and content writers about accessibility standards and accessible design principles. Every public-facing staff in every organization that is part of the ODR ecosystem must be familiar with the basics of how disabled people use computers and other digital devices, and how to escalate issues to an appropriate person. In her book, Structured Negotiation, A Winning Alternative to Lawsuits, Lainey shares stories about a common trigger for many accessibility Structured Negotiations as well as lawsuits: consumers getting poor customer service from untrained staff. Not surprisingly, staff training was an element of the Winn-Dixie court-ordered injunction.
• Adopt testing protocols that include disabled people: Ongoing testing is critical to make sure accessibility sticks. Automated tools can provide useful data, but should never be used alone — human input is critical to any testing program. And testing by disabled people must be a regular aspect of a digital program. Usability testing can and should incorporate disabled technology users. Testing obligations are consistently included in legal settlements of digital accessibility cases.
• Hire a consultant if needed. Public and private entities must treat accessibility as they would any other aspect of their organization: if there is no in-house expertise, hire someone to help. To rely on an old proverb, digital accessibility consultants should ideally not cook and serve you the fish; they should teach your teams how to fish. Always interview at least two or three potential consultants. Check references. Taking accessibility seriously pays off.
• Shout it from the rooftops: Have an easy-to-find Accessibility Information Page linked to every ODR page:An Accessibility Information Page (AIP), also known as an Accessibility Statement, demonstrates an organization’s commitment to accessibility. And it gives disabled users a place to go if they encounter a problem with an ODR platform — instead of calling a lawyer or being locked out of participation. The European Union Web and Mobile Accessibility Directive requires public sector bodies to publish Accessibility Statements. The UK has recently published requirements for what is needed in the statement.
Among other things, a good page(s) should clearly state the organization’s digital accessibility policies and services and include both a phone number and email address (or a simple and accessible form) for a site visitor to report a problem or get help. Most importantly, the person on the receiving end of the phone call or email must be prompt and responsive. Examples of Accessibility Statements in public, private, and academic settings can help guide new pages.
• Put accessibility enhancements in release notes: Another way ODR proponents can let the public know of their accessibility commitment is by including enhancements in standard release notes. In a 2016 settlement agreement reached in Structured Negotiation, E*Trade agreed to “include information about accessibility improvements, as applicable, in the release notes for new E*Trade Mobile App releases.” This is one of many factors contributing to the company’s leadership role in digital accessibility.
• Make accessibility part of appropriate job descriptions and evaluations: If someone’s job touches accessibility, accessibility should be included in that person’s job description and evaluations.This shows staff that accessibility is an important aspect of their work. It is a proactive way to avoid the type of problems that underlie legal action about digital access.
• Soup to Nuts, Evaluate your systems: Digital accessibility is not only about websites and mobile applications. Every aspect of ODR systems, as discussed above, intersects with accessibility because disabled people may be the next ODR disputant, mediator, lawyer, judge, or court or company personnel. Emails often contain accessibility barriers and are overlooked when thinking about website access. Lawsuits have focused on the accessibility of learning management systems and streaming video services. Digital services, including services increasingly being offered in courthouses and government agencies, are typically part of stand alone kiosks — kiosks that must be accessible. Read more about kiosk accessibility and the law.
Different teams may be responsible for different digital aspects of an ODR system, but a holistic approach to accessibility saves money, leverages resources, and ensures that the public is not inadvertently left out of any aspect of the dispute resolution process.
• Have accommodation policies in place for off-line interactions. As discussed above, participants in off-line ODR meetings may need an accessible space, sign language interpreters, or alternative formats for print materials. Don’t wait until the last minute to meet these accommodation needs. Policies should be in place that describe offered accommodations. Know where meetings will be held if architectural accessibility is needed, and be ready with contact information for reputable interpreter or CART service-providers. Have a plan in place to ensure document accessibility. (The law requires that all documents provided by ADA-covered entities be accessible; accessible electronic or web-based documents should not have to wait for a request.)
• Create a culture of accessibility: Accessibility in ODR is a way of creating the broadest possible access to justice. It is a tool to make all participants feel heard - a core value of successful dispute resolution. But accessibility is not a “one and done” thing. A culture of accessibility is needed to avoid slippage at the next mobile release, with the next tech procurement. Motivating all aspects of an organization to embrace and maintain accessibility ensures consistent commitment to disabled participants. Make accessibility something to be proud of: recognize key players, give awards, value small steps in building a truly inclusive culture in all ODR programs.
The goal of these best practices is to create that culture so accessibility becomes an inherent part of all ODR systems. As each new type of technology or information is introduced in the ODR community, accessibility must be there from the beginning, as an integral way of doing business and providing both private and government services.
When accessibility is an afterthought, it is far more expensive and can create frustration and non-participation by ODR stakeholders. The ODR community must embrace disability accommodations and digital accessibility. Not as compliance checklists, but as fundamental aspect of how ODR systems are designed and implemented around the world.