News
Mediation
Participating in ADR and Mental Illness or Drug Abuse
By Abby Tolchinsky and Ellie Wertheim
February 20, 2008
In recent weeks, the alternative dispute resolution (ADR) community in
The community seems to fall into two distinct camps: those who take the
position that the mediator, as process expert, is conferred with the authority
to determine who may mediate; and those who believe such a position is not only paternalistic, but at odds with mediation's core
value of self-determination.
Standard of Practice
At the heart of the conversation is a challenge to the prevailing standard of
practice in the mediation community: that those who suffer from mental illness
or substance abuse are presumed inappropriate for the mediation process.1One community mediator has come forth revealing that she herself is mentally
ill and explains that in her viewpoint "rational self-interest is
contextual and based on a person's premises." She advises that it is the
mediator's flexibility and competence that informs the ability to mediate with
a mentally ill person rather than that person's capacity.2
For practitioners, the debate about people's capacity
to participate in mediation triggers several questions: Who can mediate? Who
decides who can mediate? Does the type of case and/or
the presence of attorneys in that case inform the decision of who can mediate?
The ability to represent oneself in making decisions
that lead to the resolution of the conflict at hand goes to the essence of what
it means to mediate. The parties themselves, with the facilitation of the
mediator, reach their own best solutions - neither judge nor arbitrator weighs
in. That means having the autonomy and authority to make choices for oneself based on a full understanding of the circumstances
and alternatives going forward. The mediator's role in ensuring this ability to
self-represent entails employing a range of tools: securing agreement to full
and open discovery; using neutral experts; examining documents to ensure that
all parties have an equal understanding of relevant issues and facts; and
reality testing potential settlement scenarios, among others. Under the Model
Standards of Conduct for Mediators, "A mediator shall conduct a mediation
based on the principle of parties' self-determination. Self-determination is
the act of coming to a voluntary, uncoerced decision
whereby each party makes free and informed choices as to process and
outcome."3
The bright line disqualifiers for participating in mediation have traditionally
been substance abuse and mental illness. Alongside this bright line, one can
easily envision an individual under the influence of narcotics or incapable of
participating in a rational conversation due to severe mental illness. But
shifting from the extreme, in cases in which a party to mediation may be
emerging from drug rehabilitation or under the effective care of a treating
psychiatrist, one can also envision a process that accommodates the broad range
of needs of such parties who seek mediation. In a culture of public disclosure,
debate and openness, and with the more recent development of effective
medications, rather than marginalizing those with particular limitations,
mediators now have the opportunity to provide services to individuals
previously stigmatized and deemed incapable of participating. Likewise such
individuals can benefit from a measure of empowerment and support rather than
needing to mask or deny their conditions.
In all manner of cases, the Model Standards compel the mediator to consider the
"presence of appropriate participants" and "party
competency." In further detail, the mediator is directed to "explore
the circumstances and potential accommodations, modifications or adjustments
that would make possible the party's capacity to comprehend, participate and
exercise self determination."4
For example, an employee may be facing an early retirement compensation package
as the result of corporate restructuring and may not have the wherewithal or
sophistication to understand either the employment law, impact on a pension or
other rights which the law may provide such an individual. The mediator in such
a case may ensure both parties are represented by counsel, may suggest counsel
attend the mediation sessions and will also confirm the retiring individual's
full understanding of the financial choices he faces. Ideally, these safeguards
provide a future relationship noted for its predictability, trust and legally
enforceable results.
Informed Decision-Making
As process experts, mediators' ultimate goal is to engender fully informed
decision-making by the parties. Additionally, attorneys for parties in mediation
should be assessing whether their clients fully understand the alternatives to
mediation (i.e., litigation, a strict application of the law) and the risks and
benefits of each alternative forum. Should the clients remain in mediation,
they are active participants in crafting a settlement. Thus, attorneys should
be mindful of their clients' ability to direct counsel and participate in
settlement negotiations.
Only through informed decision-making can parties attain the mutual goal of a
fair and final settlement. If the agreements are made by uninformed parties, or
under the influence of drugs or alcohol, they will, ofcourse, be subject to future attack. Thus, the parties must meet a threshold of
competence in order to participate. Whether the parties each meet that
threshold is determined by an ongoing examination by both the parties and the
mediator. Throughout each phase of the mediation, all must agree that the
process is an effective forum for reaching a legally binding settlement.
That said, an initial imbalance between the parties is
often the rule and not the exception. Generally, one party may be more
sophisticated financially, have a more assertive personality, or, perhaps, more
experience negotiating settlements. This is particularly true in mediations
with a great personal involvement by the parties rather than their attorneys,
such as in cases of dividing a family business, employment disputes and
divorce.
Given the imbalances in all conflicts, is it up to the mediator, as process
expert, to determine whether one of the parties is able to participate or is
the participation itself also a function of self-determination? "Although
party self-determination for process design is a fundamental principle of
mediation practice, a mediator may need to balance such party
self-determination with a mediator's duty to conduct a quality process in
accordance with these Standards."5
Mediation is a collaborative process among the parties and the mediator. Thus,
if any member of the "team," at any point in the process, senses that
this is the wrong setting, that person has veto power, or should withdraw from
the process. For the parties, mediation is of course voluntary, but a mediator,
too, may choose to withdraw from a case in which the power imbalance cannot be
addressed and the "weaker" (e.g., less financially savvy, passive in
negotiating) party fails to represent himself, or seek support from experts
and/or counsel.
Part of the mediator's job entails supporting the individual's needs, always by
agreement of the parties. Returning to the initial example of a party suffering
from mental illness or substance abuse, the mediator should inquire as to
whether the party himself is concerned about his ability to participate in the
process. The second level of inquiry is what the mediator can do to assist that
person.
As mediators who have worked with an alcoholic client and with a bipolar
client, we have sought to maintain the integrity of the mediation process while
providing referrals for outside support, as well as inviting outside
professionals into the mediation sessions. Indeed the Model Standards place
under the purview of the mediator's responsibilities making referrals to
outside expert resources. " . . . Where appropriate, a mediator should
make the parties aware of the importance of consulting other professionals to
help them make informed choices."6
In the case of a mentally ill client, the participation of her therapist, both
as a support to her outside of the mediation, as well as in sessions, proved
essential in focusing the negotiations. The therapist provided her patient
caring, trusted and practical advice which was ultimately incorporated into the
separation agreement. Having his wife's ally in the room also benefited the
husband, freeing him to assert himself, unburdened by his urge to protect his
"vulnerable" wife. These efforts reflect a natural elasticity in
mediation; the mediator is charged with the responsibility to tailor the
process to the circumstances of each case before him.
Conclusion
Finally, it is worth noting that the ability to make fully informed mediated
choices, is, of course, affected by both the complexity of the case, as well as
by the presence of counsel in mediation. The burden on the mediator, to ensure
balance and a fair mediation process, is greater in cases where counsel are
consulting infrequently or perhaps just at the conclusion of the process, upon
drafting a negotiated agreement. While such cases may be less legally complex,
the impact of settlement on the parties is not necessarily of lesser
importance. Nonetheless, even in more complex cases, with attorneys for all
parties present throughout the negotiations, the mediators and the advocates
still are charged with the duty to ensure that the parties are participating in
the right process for their particular conflict.
Abby Tolchinsky and Ellie Wertheim are partners at
Family Mediation.
Endnotes:
1. Victims of domestic violence too are deemed inappropriate to represent themselves in mediation based on concerns for safety as well
as an imbalance of power. This article does not address the very particular
circumstances surrounding this complex issue. We leave for another column this
debate within the ADR, domestic violence and family law communities.
2. Cissy Stamm at NYC-DR@listserver.jjay.cuny.edu,
Feb. 4, 2008.
3. American Bar Association, American Arbitration Association and the
Association for Conflict Resolution, Model Standards of Conduct for Mediators
August 2005, Standard I(A), page 3.
4. Model Standards, Standard IV(A)(10), at 6.
5. Model Standards, Standard I(A)(1), at 3.
6. Model Standards, Standard I(A)(2), at 3.