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What if it’s a mental health issue?

February 1, 2012

This post is not about mediating disputes under the Americans with Disabilities Act.  Neither is it about Special Education mediations (which are fascinating, I know, as I have conducted them).  Rather this is about when or if one of the participants in the mediation has real or perceived mental health issues.

I began thinking about this today while reading a thread in a LinkedIn group to which I belong.  The thread started with the question, “What do you, as the mediator, do when an individual has a clear Mental Health Disorder but has not self-disclosed this information?”  The question was posed by Danielle Brown, a colleague in Ontario, Canada.

The responses were interesting and wide ranging. Some of the respondents were trained in psychotherapy as well as mediation.  Some were trained in mediation or law but not psychotherapy, which describes most of the mediators I know in our community.

Ultimately, the responses coalesced into the idea that the mediator should adjourn/recess/end the mediation if and when it is determined that the participant has (actual or perceived) mental health issues that make it unproductive or harmful to continue.

But it’s one thing, as suggested in the question posed by the Ontario mediator, when the mediator has the strong palpable feeling that there is “a clear Mental Health Disorder.”

It’s quite another thing when the mental health issues, if they even are mental health issues, are so subtle or akin to the behavior of highly emotional, stressed disputants in conflict anyway, that they are nearly impossible to perceive, possibly not  until well into the mediation session if ever.

This latter scenario was described in more detail in an online article entitled “Disabilities And Mediation Readiness In Court-Referred Cases: Developing Screening Criteria And Service Networks” by Patrick G. Coy & Tim Hedeen.  It is available at http://www.mediate.com/articles/cohed1.cfm.

In that article, the co-mediators suggested that there were hints of something being amiss in their mediation, but they couldn’t see “the small red flags [waving in the] gentle breeze,” and no one in their community mediation program had pre-screened for mental health issues before they began.

Nevertheless, the co-mediators in the cited article ultimately discerned, to their considerable dismay it appears, that their disputant lacked the social skills or the mental health to function adequately in a highly-charged facilitated negotiation process.

In reflection, the co-mediators suggested that mediators can look for clues such as these, so easily overlooked or misinterpreted in a conflict which is emotional anyway:

“severe mood swings, consistent behavior so inappropriate as to be more than merely disruptive, severe withdrawal from the process, ongoing challenges to mediator actions or suggestions, substantial behavioral changes within the mediation process, the continued and blatant inability to adhere to simple ground rules, the repeated failure to focus on an agreed-upon topic, consistent misinterpretation of the intention and meaning of mediator statements, and a persistent reneging on decisions painstakingly arrived at during the same session.”

Ultimately, in the article’s case study, once the inappropriateness of mediation dawned on the co-mediators, because of real or perceived mental health issues, they ended the mediation without agreement and escorted the parties out separately to avoid further complications.

That is probably as much as any mediator can do when faced with unexpected possible mental health issues, but the possibility is something additional to be wary-of in the twists and turns of mediation practice.

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From → Mediation

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