GPSolo Magazine - September 2004
Dispute Resolution Question of Competencies in Ada Mediations
When the Americans with Disabilities Act (ADA) was passed, it raised the question of whether disability has a unique impact on mediation. Many mediators, faced with a party with a disability, resorted to a way of thinking about the professional-client relationship that was retrograde: The person with the disability was objectified and treated as if greatly different from those without disabilities.
If we think more precisely about competencies and capacities in ADA mediation, the potential value of mediator rosters and mediator training can help point the way back to basic principles preserving the integrity of all participants.
Establishing competencies. The important question is whether the door to mediation services is shut more often to clients with apparent disabilities and non-apparent disabilities that are disclosed than to those with seemingly no apparent disabilities who happen to lack the competencies to mediate. The response to a person who has no apparent disability but exhibits behaviors associated with cognitive or mental disabilities is to assume that an inability to mediate is the result of an apparent disability. And a person with an apparent disability who is able to mediate is thought of as a “superperson.” This focus highlights a possible conclusion about the relationship between disability and its role in mediation, giving it more importance than it actually has in the success or failure of the process. When parties have difficulty with mediation so that the outcome is doomed and one of the parties has a disability, the tendency might be to relate the failure of mediation to that disability. Where there is a non-apparent disability in a failed mediation, the tendency is to search for and attribute the failure to factors associated with mental and cognitive disability. If the mediation has a successful outcome, it is rarely attributed to disability, which is more often seen as an impediment to successful mediation.
Competencies versus mental capacity. Some mediation practitioners have focused on whether there are benefits in distinguishing between determining capacity and facilitating competencies in mediation. Using the plural form of competency points to an important distinction. To participate in mediation, all parties must have certain competencies. Some are obvious, such as: (1) thinking and behaving in a collaborative manner; (2) balancing the emotional and cognitive dimensions of problem solving; (3) understanding the interests of other parties; (4) risk taking; and (5) following shared principles when making decisions. Most individuals have the competencies necessary to participate in mediation. The mediator’s role is to help activate competencies that already exist or to be a role model for the competencies needed to complete the mutual problem-solving process.
Capacity usually refers to a legal or mental health finding about a person’s overall ability to function. Mediators usually have neither the legal authority nor the technical expertise to determine capacity. Even if they had both, determining capacity as defined in law and mental health would raise ethical issues in requiring a mediator to function as someone other than a mediator while delivering mediation services.
The ADA and competencies. The ADA acknowledges that input from all parties is important in implementing its provisions. Although the ADA doesn’t directly address the dispute resolution practitioner’s behavior, he or she must determine the appropriateness of mediation without violating the civil rights of the person with the disability. Determining capacity without the expertise, legal authority, and consent of the person with the disability could violate civil rights by withholding access to service. On the other hand, facilitating competencies in aid of determining appropriateness falls within a mediator’s range of skills and party expectations. In addition, facilitating competencies is interactive, involving not only the mediator but also all parties in the mediation.
Do not presume that when a person with a disability is in mediation, his or her capacity has to be determined beforehand. Focusing attention only on that person will result in treating him or her differently than an individual about whom capacity is not deemed an issue. The objective of mediators ought to be to approach all parties in mediation as if an audit of competencies needs to be made continually from the beginning. Ask yourself what every individual will need to get through the mediation. This process often results in a list of competencies to consider and suggested approaches to take.
Rosters and competencies. After the ADA passed, the Department of Justice sponsored trainings to create a roster of individuals experienced in mediating civil rights disputes and possessing training in the substantive aspects of the law. However, roster membership doesn’t guarantee that mediators will exercise the competencies necessary to provide services that meet the needs of all parties.
ADA cases are sufficiently distinct that each one presents a new challenge for a mediator. One practice that will help ensure that all parties’ needs are met and also support the learning that experience brings is to supervise and monitor cases to which roster mediators are assigned.
Viewing mediation involving people with disabilities with a broader lens highlights the responsibilities to clients, regardless of their personal characteristics. Not only does this improve practice techniques, but it also helps avoid the negative consequences associated with focusing on the disability, including: (1) encouraging the mediator to think about the person as the “identified patient;” (2) depriving people with disabilities of their rights to have access to mediation; (3) overreaching, where mediators function as judges and mental health professionals; and (4) assuming erroneously that the disability is more directly connected to mediation competencies than other characteristics of the parties.
Training and competencies. One way to ensure that roster mediators share common skills, knowledge, and abilities is through training that allows mediators to examine assumptions with respect to people with disabilities in their roles as parties in mediation. Mediators in training are instructed to look for real or potential violence, as well as mental, cognitive, and behavioral indicators influencing client decision making. Most discussions about capacity in training focus on a party’s inability to continue in the mediation.
Mediators generally fend for themselves in determining capacity to mediate, with vague notions about how to determine whether mediation is the appropriate method of dispute resolution. Being drawn to mediation because of a sincere desire to help usually serves no useful purpose in determining capacity or in facilitating competencies. And interventions based on problem-solving techniques from professions such as social work, law, human resources, and finance usually have goals other than facilitating the client’s ability to participate in a process whose central principle is self-determination.
Consequently, training is probably the most difficult activity to discuss as well as to influence. A goal would be to start with mediators who understand the substantive area of the law as well as behavioral dynamics and then offer them the opportunity to mediate cases with supervision and the possibility of mentoring. Mediation trainers should: (1) avoid using the terminology usually associated with determining capacity; (2) include exercises that focus on recognizing cues of competencies necessary for the mediation to proceed regardless of who is presenting the behavior; (3) present strategies about intervening to determine whether the trainee has assessed correctly what competency needs to be facilitated; (4) introduce techniques that would represent a non-intrusive reinforcing of blocked competencies; and (5) instruct trainees about how the determination of competencies occurs throughout the mediation for all parties, including the mediator.
Peter R. Maida is the executive director of the Key Bridge Foundation in Washington, D.C. He can be reached at firstname.lastname@example.org.
for more information about the Section of dispute resolution
- This article is an abridged and edited version of one that originally appeared on page 9 of Dispute Resolution Magazine, Winter 2004 (10:2).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/dispute/.
- Periodicals: Dispute Resolution Magazine, quarterly magazine; Just Resolutions, quarterly newsletter.