During my graduate education in alternative dispute resolution, neurodiversity was explored as a journal prompt asking what a mediation practitioner should do if a client is exhibiting behaviors consistent with mental illness during a mediation session. I looked to the Model Standards of Conduct for Mediators as it is a relied-upon ethical and professional guideline for practitioners. I found that if a party’s responses or behavior causes a mediator to believe a party needs help to grasp the mediation process, and does not understand, or is experiencing difficulty concentrating on the dispute issues or resolution options, then the practitioner is strongly recommended to find out why the party may be struggling. If, after careful exploration, the client is determined by the mediator to have a diminished capacity for comprehension, it is strongly advised per the Quality of Process standard that the mediation practitioner decide if a modification of the mediation process or an accommodation would help that client to participate fully and effectively in the mediation process, as intended. An issue lies in the fundamental incompatibility of a practitioner having a choice to promote a client’s self-determination and the mediator’s core responsibility to execute and maintain the integrity and essence of the mediation process by fostering the client’s self-determination.
Self-determination is coming to an uncoerced resolution and making reasoned decisions. The problem is that no listed standards exist for maximizing competence and self-determination of parties with [mental] conditions that impact the cognitive processes of awareness, learning, judgment, comprehension, memory, and reasoning. Nor did it cover the complexity of human understanding, emotional responses, behavior, and communication. So, I researched how best to promote the self-determination of clients with mental disorders.
In my investigative efforts, I came upon inquiries about clients living with a mental health disorder participating in a mediation session. These concerns addressed whether clients living with mental health disorders could advocate for themselves, understand the dispute resolution process, participate by the Standards of Conduct, whether the mediation would be productive, and if safety was going to be an issue for the mediator, other parties, or the client’s own person. Additionally, I found suggestions that advise practitioners to talk to the client in question and try to understand whether they need any accommodation to support their participation in the series of actions and steps essential to settle a dispute. Mental disorders were discussed as health conditions that impair an individual’s cognition, behavior, and emotion regulation and a pertinent reality that bears significance to party capacity, participation, and informed consent (Knisley & Press, 2022). In mediation research, informed consent is defined as participating parties understanding what it means to willingly take part in the process, having the ability and knowledge to make decisions, and knowing what it means to reach an agreement during mediation. Accordingly, recommendations on how mediators can enable client self-determination and understanding in the mediation process are based on the premise that a client lacks the ability to participate fully in the process and cannot provide informed consent.
The more I researched, the more I gained insight into the bustling conversations within the mediation community about mental health, client participation, best practices, and legal obligations. A pattern that I found was that in these discussions, mental health disorders are considered and treated as a stigmatizing disability.
Stigma is a socially classified philosophy based on distinguishable and undesirable human characteristics that lead to unfair treatment and erroneous views of those perceived to bear the mark of the stigma. The leading ideas of the alternative dispute resolution community, mediation organizations, and practitioners on providing [ethical] accommodations are to refer to the Americans with Disabilities Act and ADA Mediation guidelines.
Other proposals made involved implicit bias training to promote mental health bias education and address discriminatory mediation policies and procedures that reinforce unreasoned assumptions and preconceived notions of mental health. Further, they affirmed that accessibility is an essential legal privilege to those who are considered disabled and that in the context of mediation, accessibility means that the dispute resolution process would be adjusted to allow persons with disabilities to use government and consumer services like mediation, just as other individuals without disabilities would (Kennedy, 2020; Berstein, 2020). Accessibility promotes equity, and because of this, practitioners are advised to make mediation accessible to best support clients with mental disorders in mediation. However, mental disorders are defined and classified under the International Classification of Diseases and the Diagnostic and Statistical Manual of Mental Disorders into various categories, such as neurodevelopment disorders, sleep-wake disorders, substance-related and addictive disorders, and feeding and eating disorders. Because the definition of a mental disorder is broad, making the mediation process accessible is nuanced, just as each impairment or disability is unique (Cohen, 2021). Not to mention that 1 in 5 individuals living in the United States are living with a diagnosed mental disorder–as a practitioner, the odds of providing alternative dispute resolution services to a person with a mental disorder throughout one’s career is highly likely.
After all of my research, I thought that there should be a mental health professional in the mediation session to help clients living with mental health disorders because I do not have the expertise to support them properly or discern whether the client is experiencing a mental health challenge or if they are responding to the stresses of the dispute and the resolution process. That is until I became certified in mental health first aid with the National Alliance on Mental Illness (NAMI). In the training, I learned to recognize the signs and symptoms of a person experiencing a mental health challenge or a mental health crisis and the appropriate steps to take in order to help. Outside of this training, the closest that I felt to being prepared or knowledgeable of how to help clients with mental health disorders in mediation was when I attended an hour-long implicit bias training workshop taught by neutrals with a background in mental health and neurodiversity at an annual mediation conference where the topic of ordinary differences in human cognition, emotion, and behavior was explored.
New and appropriate knowledge on mental health and the complexity of human cognition is an expertise that has not yet been incorporated into practitioner education as a contextual variable of client competence but is recommended for a mediator to study independently. Nevertheless, why should a select few individual practitioners have the competence to mediate with neurotypical and neurodivergent clients? If accessibility is a legal right, shouldn’t all mediation practitioners have the skill and competence to make the process easy to access and use by anyone who elects to use it? Moreover, why isn’t this vital quality and organizational knowledge prioritized and fostered within the mediation industry and the institutions that train people to become mediators?
My response to my journal article would be that the solution to promoting the self-determination of clients with mental disorders can occur if and when organizational learning is used to better the structural and procedural aspects of mediation because they correlate and influence one another. Organizational learning is when organization members create, take in, and fully understand information, ideas, and experiences and disseminate that knowledge within an institution to achieve its objectives. In short, employing new wisdom empowers an organization to move beyond the act of adaptation and towards evolution.
Mediation education is behind the times regarding normal variations of human behavior, emotional responses, and thought. Neurodiversity must be a core competency for mediators to grasp as they lead clients through communication, reasoning, problem-solving, and understanding. Neurodiversity refers to cerebral activity, explicitly acknowledging the different ways people experience, understand, perceive, learn, and interact with the world around them and process information.
Training and continuing education that covers practices, approaches, and knowledge on the latest developments in human understanding, reasoning, perception, and emotional and behavioral responses provide valuable and necessary insight into party emotional and behavioral responses. Also, it is necessary to redefine how disability is understood in mediation so that cultural views of the word do not influence it. Its meaning should be interpreted and established on objective criteria and by authorities of human cognition, neurodevelopment disorders, and neurodiversity, such as teachers (for both neurotypical and neurodivergent), mental health education and assistance organizations, neuroscience, and neuropsychology. Determining a client’s activity limitations for learning and applying knowledge, managing tasks and demands, and establishing and managing interpersonal relationships and interactions should also be distinguished in the description of faculty.
Since mediation has been systematically practiced since the 1970s, the industry must collectively identify and understand how the activities and input relate to the outcomes and impact and how the processes can be improved to establish and sustain optimal organizational practices. Additionally, suggested practitioner techniques and mediation processes must be recorded and studied to evaluate the outcomes, use that data to learn from it, and make improvements based on aggregated data. Mediation may be considered an art, but data science is needed to balance and advance it—just some food for thought.
Conflicts of Interest Blog by Vivian Scott When it comes to conflict we probably share some regrets. Regret for the things we said, regret for the things we didn’t say,...
By Vivian ScottThis article was originally published by CPR Alternatives.Introduction Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention...
By Jeffrey KrivisOn October 21, 2008 I read a curious Reuters headline that stated “Taliban Seeking Mediator.” Immediately I puzzled over why the Taliban would want one of us...a peacemaker, a harmonizer,...
By Merri L. Hanson
