Focusing on Significant Case Law, Analysis and Trends

VOLUME 35, ISSUE 5                                                                       September 13, 2007


[Page] 5

-------------------Title II---------------------

ADR after settlement puts accessibility plan back on track


What can be done when remedies under a consent decree stop moving forward, but the organization does not want to step back into litigation mode? In the case of Advocates for Disabled Americans, et al. v. Township of Middleton, No. 04-3030 (D.N.J. revised consent order filed 08/01/07), the answer was a revised consent decree that provided for the same remedies but added specific­ity to the prior agreement and additional enforcement mechanisms for timeliness.

In 2004, Advocates for Disabled Americans, a Leonardo, N.J., advocacy group, and two individual plaintiffs, Carolyn Schwebel of Leonardo, N.J., and Carmena Stoney of Cliffwood, N.J., sued the Township of Middleton, N.J., alleging that the township's lack of an ADA transition plan, as well as its inaccessible city hall, libraries and parks, violated Title II and Section 504.

In February 2006, the parties agreed to a consent order specifying that the township would make the required renovations and adopt an appropriate ADA transition plan. The consent order called for any dis­putes regarding the settlement to be sent to arbitration, with an arbitrator at least as qualified as a superior court judge.

By February 2007, the promised transition plan had not been adopted by the township. The parties turned to retired New Jersey Superior Court Judge James D. Clyne of Benchmark Arbitration Services LLC. Judge Clyne used both arbitration and mediation techniques to achieve a secondary settlement.

“At first I was concerned about arbitration, but this took less time than going back to litigation," said Schwebel. She said that the judge helped frame the dispute as a need for timelines and penalties, instead of focusing on monetary damages. The judge helped the township understand that it needed to start with a transition plan, then make renovations.

After both arbitration and mediation, the parties agreed to an additional consent order. This order re­quires the township to meet smaller milestones by specific dates and requires progress reports every 60 days. The township will incur a $10,000 penalty for any missed milestone. The township also agreed to pay $45,000 to the plaintiffs for damages and attorney's fees.