It’s a midweek afternoon and your court-ordered mediation is about to begin. The parties and their counsel are present and anxious to speak, but they have not provided any premediation information to you. As a result, you have no history about the disagreement. You aren’t terribly concerned about this because you know that much of the best facilitation in your mediations takes place in the back-and-forth between the parties and their counsel and the mediator.
After the first hour is spent unravelling the complexities of plaintiff’s completed work tasks, which were never documented by the employer, you are beginning to relax into the flow of the mediation when plaintiff’s counsel snaps you out of your comfort zone. She wants you to know that her client has a traumatic brain injury (TBI), and he cannot remember signing documents ten minutes after doing so. Counsel assures you plaintiff is more than capable of managing his own affairs and can proceed with this case.
Many mediators have experienced some form of this scenario. Unexpected information coming to light during a mediation is hardly novel. But when the information concerns issues related to mental health or mental illness, it behooves mediators to ask themselves and others in the profession about the practical and ethical implications such information can have for the process. Specifically, what actions can and should a mediator take in these circumstances?
The Model Standards of Conduct for Mediators (2005) provide some guidance and raise a number of questions. Specifically, Standard VI.A.10 (Quality of the Process) appears to have been written with this type of situation in mind:
If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
This standard includes three important aspects. First, the mediator needs to be able to notice that a party is having “difficulty comprehending the process, issues, or settlement options, or difficulty participating in the mediation.” Second, if the mediator notices that there is an issue, the mediator is not obligated to end the mediation. Rather, the mediator should “explore the circumstances and potential accommodations, modifications or adjustments” so the party can continue to participate. And third, the party must be able to exercise self-determination. In Standard I.A, self-determination is defined as “the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
With regard to the first aspect—the mediator “noticing” that a party is having difficulty comprehending the process—several questions emerge. For instance, in our hypothetical situation, did the plaintiff show difficulty participating in the mediation before their counsel disclosed the TBI? Is now an appropriate time to inquire further about the plaintiff’s condition? Is the plaintiff or their counsel required to answer such questions and, if so, to what extent? If plaintiff’s counsel indicates there are no concerns, as in our hypothetical, is it appropriate for the mediator to rely on that assurance? What if you, the mediator, feel otherwise?
Once an issue is identified, we move to the second aspect of the standard. What constitutes an appropriate accommodation, modification, or adjustment? Should the modification suggestion come from the mediator, the party, or the party’s counsel?
Finally, regarding the party’s ability to exercise self-determination, does a mediator have a different obligation if the party is pro se, as opposed to represented by counsel or accompanied by another representative? And parties sometimes make decisions in the course of the mediation that seem counterintuitive to the mediator, but are what the party insists they desire. Should we handle this differently if the party has been diagnosed with a mental illness or a mental health issue? How do we as mediators weigh the difference in real time?
Model Standard VI.A is the umbrella standard. It states that the mediator “shall conduct a mediation … in a manner” that promotes “party participation,” “party competence,” and “procedural fairness.” These requirements raise a number of additional questions. Following a disclosure by plaintiff’s counsel, as in our hypothetical, what decisions will ensure the mediator conducts the session in a way that promotes party competency and procedural fairness? If plaintiff and their counsel are unwilling to discuss plaintiff’s TBI further, what are the implications for the mediator? What are the implications for the other parties and their counsel? The mediated session itself? What objections might parties and their counsel raise to the mediator’s inquiry into and accommodation of plaintiff’s TBI? How should the mediator address these protests?
Of the conversations in the mediation literature on mental health and mental illness, one of the frankest discussions is in Mandy Rutter’s 2014 article, Mental Health and Mediation: Is Mediation Always the Right Process. Rutter avoids painting people diagnosed with mental illness and mental health issues, and the “disability community” generally, with a single, broad brush. Rather, she writes, “[o]ften, when I think I’ve found a formula that works in one situation, I’ve found myself sounding patronizing when applying it in another situation. The only philosophy that works for me is having the desire to be helpful, to be part of a nourishing environment for a person who is struggling.” Instead of enumerating reasons why individuals with certain disabilities should not participate in mediation, Rutter honestly admits that mediating when mental illness or mental health issues are present is “more of an art than a science.” She notes that there are genuine concerns for mediators, most of whom will not be experts in mental health assessment or have the experience to understand how mental illnesses and mental health issues manifest from person to person.
Even so, Rutter’s approach forces additional questions to the surface. As there is no universal standard regarding party comprehension or participation in mediation, what choices does a mediator have when confronted with a party of neuroatypical ability? Or with a party whose symptoms manifest outwardly in language and behaviors considered “unprofessional” or inappropriate for the mediation process? Is the answer to develop and adopt universal party competency standards? (We don’t believe that is the answer.) What does a mediation process that is part of a “nourishing environment” look like? How much time are mediators obligated to spend on this subject?
One in five Americans will experience a mental illness or mental health issue in a given year. That equates to tens of millions of people. It is highly likely that at some point, all mediators have worked with or will work with a participant experiencing a mental health or mental illness issue. Given these numbers, it is equally important for other dispute resolution practitioners, including arbitrators, neutral evaluators, and parent/elder coordinators, to consider the implications. Ideally, discussing these questions and imagining the scenarios we may face before such a mediation (or other ADR process) would be best for the parties and the ADR process.
We cannot predict what each process may hold. But conversations exploring these issues will enable us to be better prepared if a situation arises. Preparation is important if we are to avoid having knee-jerk reactions, assumptions, and stereotypes rule the day.
