Consumers of mediation services have a range of options when it comes to choosing a mediator. For many, especially in this competitive economic climate, conservatism guides their choices. Most consumers of mediation services are attorneys, either in-house general counsel, or private firm attorneys representing clients in litigation. Attorneys are notoriously risk-averse, and name brands, in mediation as with other goods and services, provide a high level of comfort to the risk-averse. Thus it is not surprising when attorneys recommend to their clients that they select a retired judge, former big firm partner, or famed trial lawyer-turned-mediator. The success of JAMS is a well-known example of the branding of mediation services.
While a retired judge, former big firm partner or famed trial lawyer-turned-mediator may provide excellent ADR value for large-scale commercial lawsuits, there are many types of disputes in which the client may be better served by a psychologist mediator. Divorce attorneys, dealing as they do with one of the most stressful transitions in anyone’s life, are more likely than commercial litigators to see the value in therapist mediators. Often, their clients bring strong emotions into their legal consultation which interfere with the productive resolution of issues in dispute. Though some divorce attorneys have a wonderfully warm “deskside” manner and justifiably take pride in the comforting and personalized service they provide, it is a rare divorce attorney that can deal effectively with the emotional lability or intransigence of, say, someone with a borderline personality or substance abuse disorder.
Divorce attorneys are accustomed to referring clients to therapists for treatment. In the collaborative divorce model, mental health professionals are utilized as a matter of course. From seeing therapists as respected clinical resources, the collateral use of which often results in smoother, less stressful and more efficient proceedings, it is not a large leap to seeing therapists as potentially valuable dispute resolution resources. There is, therefore, a greater comfort level with the idea of psychologists as mediators in the divorce context than in other civil litigation contexts.
The value of a psychologist mediator is not, however, limited to the divorce context. A therapist mediator can be the neutral of choice in other types of family matters, such as estrangement among family members, disputes about elder care decisions, estate planning or inheritance, or dysfunction in family businesses. Less commonly, psychologist mediators have been utilized in sensitive litigation matters such as employment discrimination, sexual harassment, sexual assault or molestation, medical and psychiatric malpractice cases, and a variety of matters involving personal injuries, whether such injuries are physical or psychological. A psychologist mediator brings added value to the table in these delicate matters.
Consider the emotional needs of a personal injury plaintiff at the mediation table. At the most basic level, there is the need to be heard. Meeting this need effectively may require more than the active listening skills which are the stock in trade of every competent mediator. There is a need for accurate empathy, validation and a respectful, appropriately paced process for coming to terms with loss. While attorneys are familiar with the types of loss recognized in law – e.g., financial, reputational, market share – a psychologist mediator may more easily recognize that the plaintiff may have lost certain hopes and dreams, aspects of their relationships, and meaningful parts of their identity. Beginning to come to terms with loss is an essential precondition for settling litigation or, indeed, to reaching a compromise in any dispute. Psychologists are experts in helping people find meaning and dignity in their experience so that they can come to terms with loss.
On the facilitative-evaluative continuum, attorney mediator styles tend to skew towards the evaluative, in which the mediator helps the participants evaluate their legal position and the costs and benefits of pursuing legal remedies versus a mediated settlement. Psychologist mediators tend to use a facilitative style. Psychologists are trained to closely follow a client’s narrative, matching affect, language and pacing when appropriate. In contrast, attorneys are trained to spot issues, apply rules to facts and draw conclusions. Thus, a psychologist mediator is less likely to become impatient with a disputant’s pace. An impatient mediator can derail settlement by making a party feel hurried, disrespected or dismissed. Moreover, whereas attorney mediators tend to focus on the content of communication, psychologists are trained to simultaneously attend to content and process. Thus, a psychologist mediator may pick up on not only what is said, but how that content is talked about, including language, tone, and facial expressions, as well as body language, gestures, and other nonverbal cues. Psychologists are trained to pick up on metaphoric language used by clients, as well as relational dynamics within the mediation room which can either impede or enhance progress, and to use this knowledge in their work.
Psychologist mediators add value in disputes where special psychological needs are a factor in dispute. For example, imagine that a child whose parents are divorcing has learning disabilities and an anxiety disorder. Imagine that the higher earning parent, let’s say the father, sees the mother’s request for money for treatment, private school and tutoring per the recommendations of the evaluator as an attempt at extortion designed to punish him for his infidelity. Perhaps the father objects to extra-curricular services in part because it will necessitate changes in the schedule. Imagine further that the father has a rigid personality style suggestive of an obsessive-compulsive personality disorder, an autism spectrum disorder such as Apserger’s disorder, or a nonverbal learning disability. So, in addition to being angry and suspicious of the mother’s motives, as is common in disputes about child support, the father’s particular psychological make-up is such that it is more difficult for him to exercise mental flexibility on the issues of child support, schooling and treatment.
Standard child support guidelines and visitation schedules may not meet the actual needs of a child with disabilities. Psychologists are trained in psychological testing and thus are able to understand psychological assessment reports and help interpret them to the recalcitrant parent. In the hypothetical case described, both the child and the parent have special psychological needs; the child needs treatment and tutoring, and the father needs a mediator who can help him understand the child’s needs from an unbiased clinical perspective. In this case a psychologist mediator would not diagnose any of the people involved, but the ability to see a “difficult” person as potentially having neuropsychological differences or psychiatric difficulties can be helpful in moving beyond personalities towards problem-solving.
Perhaps the greatest value a psychologist mediator can provide is the ability to think outside the formalism of the legal process. I once co-mediated an employment discrimination case in which a pro se plaintiff was suing a government agency for wrongful termination on a novel theory. Exposure was uncertain for the defendant, but the case presented interesting legal questions, and the plaintiff was quite invested in seeing how the judge would rule on his arguments. My co-mediator focused on the plaintiff’s legal theory in light of existing caselaw, the evidence, and the prove-ability of the case. With each party expressing total confidence in their positions, the mediation was threatening to stall out. I decided to shift the focus away from the case and towards the plaintiff’s life and how it was being impacted by the lawsuit.
When I asked him how his wife felt about the litigation, the whole trajectory of the mediation shifted. My co-mediator and I were able to interview the plaintiff about their plans as a couple. Once he began talking about their longstanding plans to move to another state so that he could pursue a law school education and a new career and his wife could be closer to her family, it became painfully clear that the ongoing litigation was a major barrier to the realization of their dreams. This discussion caused the plaintiff’s cost-benefit calculus to shift, because the value of settlement had been fleshed out in a way that resonated with him emotionally. The meaning of continued litigation been transformed from a principled stand against injustice to an impediment to marital happiness, and the meaning of settlement had been transformed from capitulation to freedom. Once that happened, the parties were able to agree on a moderate financial settlement and the case was over.
In the case just described, by thinking outside the box of legal formalism, I helped the plaintiff uncover personal meanings surrounding the conflict. Personal meanings are always present, even in the most routine mediations. At a mediation of a personal injury case, both plaintiff and defense counsel were surprised to find that the impact of an accident upon the plaintiff was far greater than the plaintiff had disclosed at deposition. Trauma impacts how people remember and are able to tell their stories. A psychologist mediator was able to understand how the trauma of the accident and the subsequent depression had impacted the plaintiff’s ability to tell her story and thus advocate for herself at the time of the deposition. Further discovery would provide a more informed basis upon which to mediate the case.
Unlike attorneys, psychologists are trained to interview people and get them to open up about their lives. We are also trained to “formulate,” i.e., to hypothesize, to visualize the person’s life, their family, and their interior psychological landscape, including how experiences are affecting them emotionally, and what personal, perhaps even idiosyncratic, meanings are attached to those experiences. By bringing these abilities into the mediation process, we expand the possibilities for greater understanding, satisfaction with the process and creative options for resolving the dispute.
It must be understood that a psychologist mediator, like any other mediator, operates as a neutral, and not as a treating clinician. The role of the psychologist mediator is never to diagnose or treat any person involved in the mediation, just as the role of an attorney mediator is not to legally advise or represent any person involved in the mediation. However, just as the attorney mediator’s legal acumen and experience are assets in mediation, the clinical skills and experience used in assessment, diagnosis and treatment by psychologists are invaluable in the mediation context.
"My mother said to me, 'If you become a soldier you'll be a general; if you become a monk you'll end up as the pope.' Instead, I became a painter...By Joshua A. Berkowitz