By Abby Tolchinsky and Ellie Wertheim
February 20, 2008
In recent weeks, the alternative dispute resolution (ADR) community in New York has been abuzz with lively discussions about the effect of mental illness on parties’ ability to participate in mediation.
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.1 One 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.
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.
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.
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.