As far as I can tell, because of COVID-19 most arbitration and mediations are now being conducted online. As arbitral institutions and independent arbitrators rush to find ways to provide their services remotely, it is critical that everyone makes digital accessibility a priority. Because many aspects of our lives may remain online for the long term, it is important that persons with disabilities are not excluded from our “new normal” version of life.
The Americans with Disabilities Act was enacted in 1990 to ensure access to a physical world, but we now must ensure access to a virtual world. One might hope that concerns about equity and inclusion alone would be sufficient motivation to guarantee digital accessibility. That hope has not materialized. WebAIM explains there are primarily three reasons why people might be motivated to create accessible web content: “(1) to improve the lives of people with disabilities (human-centered motivations), (2) to capitalize on a wider audience or consumer base (marketing or economic-centered motivations), and (3) to avoid lawsuits and/or bad press (public relations and punishment-centered motivations).” (Motivations to Create Accessible Web Content, https://webaim.org/) Despite these accessibility incentives, many websites remain inaccessible.
In August 2019, Deque Systems announced the results of a study showing a pervasive “digital divide” for blind persons accessing the internet. Two-thirds of the internet transactions initiated by people with vision impairments end in abandonment because the websites they visit are not fully accessible. (https://g3ict.org/headlines/new-report-finds-majority-of-websites-in-the-u-s-are-inaccessible). This is merely one example demonstrating that inaccessibility is the norm. Consequently, there is a rapidly increasing possibility that websites not digitally accessible will be sued. A Seyfarth Shaw report observes that lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the 11,053 ADA Title III lawsuits filed in federal court in 2019. (https://www.adatitleiii.com/) Plaintiffs filed 2,256 ADA Title III website accessibility lawsuits in federal court last year. (https://info.usablenet.com/2019-ada-web-accessibility-lawsuit-recap-report)
Should you be concerned? If you have a physical place of business, your website will be covered by the ADA.
What if you do not have a physical place of business? The courts that have considered that question have not been consistent, but the 1st, 2nd, and 7th United States Courts of Appeals decided the ADA does apply, as did a California state appellate court last month in Martinez vs. San Diego County Credit Union. (https://law.justia.com/cases/california/court-of-appeal/2020/d075360.html)
How can you make your website, your online conduct, and your technology accessible? Persons with disabilities need alternative ways to access technology. Video content, for example, must have captions. Equivalent alternative text (“alt text”) must be provided for persons with visual impairments who use screen readers. Audio description tools can explain what video depicts. Because many people cannot use a mouse, participation must be possible without a mouse. Color cannot be the only way that functionality or content is communicated. Blinking or flashing content may create risks for persons with epilepsy. (See generally https://www.w3.org/WAI/tips/designing/ and https://abilitynet.org.uk/news-blogs/6-quick-checks-website-accessibility)
Actions you can take to take to improve accessibility include:
Adopt an Accessibility Standard: The international standard for web, mobile, and document accessibility is the Web Content Accessibility Guide (WCAG) 2.0 Level AA and 2.1, which both offer the most complete and specific guidance for an ODR system. (https://www.w3.org/WAI/standards-guidelines/wcag/)
Read and Comply with ODR Principles and Standards: 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. ICODR explains that quality ODR programs must be accessible, accountable, competent, confidential, equal, fair/impartial/neutral, legal, secure, and transparent. (https://icodr.org/standards/)
Include Accessibility in All Requests for Proposals and Contracts Involving Digital Content and Technology: A simple request that vendors “comply with applicable law” is not enough. Organizations must specify accessibility standards in every request for proposals (RFP) and require testing by disabled people before product delivery.
Test Your Website: Use available tools to test for accessibility. WAVE, for instance, is a helpful web accessibility evaluation tool developed by WebAIM.org that provides visual feedback about accessibility by inserting icons and indicators into your webpage. (https://wave.webaim.org/)
Adopt Testing Protocols that Include Disabled People: Ongoing testing is critical. Automated tools should never be used alone. Testing by individuals with disabilities is essential.
Hire a Consultant when Needed: It may be necessary to hire more than one individual.
Have an Easy-to-Find Accessibility Information Page Linked to Every Webpage: An Accessibility Information Page (AIP), also known as an Accessibility Statement, demonstrates your commitment to accessibility and allows users to address a problem within the organization. The European Union Web and Mobile Accessibility Directive (44) requires public sector bodies to publish Accessibility Statements.(https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L2102&rid=3)
Put Accessibility Enhancements in Release Notes: ODR providers can let the public know of their accessibility commitment by including enhancements in standard release notes.
Evaluate Systems: Every stage of an ODR system can raise disability concerns because a person with a disability may be an arbitrator, party, mediator, lawyer, judge, or court or company personnel.
Study and Compare Other Plans: Reviewing plans from other institutions can be informative. (See https://www.ppcc.edu/accessibility-at-ppcc)
For more detail regarding best practices for ODR accessibility, relevant law, and helpful organizations, please see my recent book chapter ODR Accessibility for Persons with Disabilities: We Must Do Better, available at: https://ssrn.com/abstract=3614838
David Allen Larson is a Professor of Law at the Mitchell Hamline School of Law and Senior Fellow at the Dispute Resolution Institute. He has been involved with online dispute resolution (ODR) since 1999, and he is the System Designer helping create an ODR platform for the New York State Unified Court System. David is the John H. Faricy Jr. Chair for Empirical Studies, and he is a Fellow for both the National Center for Technology and Dispute Resolution and the American Bar Foundation. He has 60 legal publications and has made 165 professional presentations in ten different countries. He is Vice-Chair of the ABA Section of Dispute Resolution and is Co-Chair of the Section’s Technology Committee. He is Co-Chair of the ABA ODR Standards Task Force and was a member of the ABA E-Commerce and ADR Task Force. David has been a tenured professor at four different universities, an attorney at the Equal Employment Opportunity Commission Office of General Counsel where he worked on the proposed ADA regulations and Interpretive Guidance, and practiced with a litigation law firm in Minneapolis. His articles are at http://ssrn.com/author=709717 and his profile is at http://mitchellhamline.edu/biographies/person/david-larson/