Escaping The Tyranny Of Professionals: Determining Fitness To Mediate?


by Robert Benjamin

January 2008

Robert Benjamin A recent posting on the New York City Dispute Resolution Listserve, (NYC-DR@LISTSERVER.JJAY.CUNY.EDU), was troubling to me, both personally and professionally. It was straightforward and innocent enough, merely seeking “....(mediation) resources and training....for individuals who work with adults with mental illness...in a supportive housing situation.” So I had to think about what it was that disturbed me.

I was drawn to conflict management, specifically negotiation and mediation practice, where people are aided in making their own decisions in difficult situations, for two reasons. First, I’ve always been in trouble and figured I knew as much about conflict as most people I’ve ever met. Like the reformed burglar who becomes a security advisor to the police department, I had hit my head against the wall for too many years, confronting, challenging and fighting authority, and came to realize the limitations of that approach. Some of that pugnacious nature remains and, quite frankly is sometimes helpful, but still needs careful monitoring. In any event, I believe this experience makes me particularly well suited to help other people deal with hard stuff more strategically and effectively. You teach what you most need to learn.

The second reason follows from the first. Being the ‘pain in the butt’ kid, my life has involved a host of experts who presumed to determine my fitness and offered ‘advice,’ more aptly described as orders or ‘you better or else’ recommendations.’ A strong suggestion was also issued to my parents to ‘get him into therapy,” where I began to, develop a healthy skepticism of professionals and other experts.

888That skepticism of professionals developed even more, fully observing how they dealt with my brother, Elliot, one year younger than I, who is mentally retarded. We grew up together. In recent years, however, experts have promoted him to being ‘developmentally disabled.’ That’s good, I guess; when he was born in 1948, it was still common for professionals to label people as ‘imbeciles.’ Their recommendation to my parents, as it was to most, was that the mentally retarded should be institutionalized. My parents, beginning what would become a long string of rejecting professional advise, refused.

Over the course of the last 50 plus years, the advice of the professionals has changed, but not the tenor of confidence and certainty with which it is delivered has not. In the early 1960’s, President John F. Kennedy’s older sister Rose, identified as “retarded,” occasionally appeared with the family. Mental retardation slowly emerged from the proverbial “closet” where it had been kept by most families as a dark secret since time immemorial. In subsequent years, Elliot’s diagnosis would shift from profoundly retarded, to educable, and ultimately, when the State of Missouri decided to follow the national trend of de-institutionalization in the 1980’s, ‘mildly retarded.’ One is forced to consider that this professional medical diagnosis was politically tainted merely to justify pushing him out of state care. My brother Elliot now lives in his own apartment, in a supported living situation, has a job in a sheltered workshop, and can watch television and play his records and CD’s to his hearts content, and is now designated as a “customer.”

With each decision made for my brother’s welfare-----if, when and where to place him in an institution, schools, health care, or even religious association----the professionals, the psychiatrists’, psychologists’, social workers’ and lawyers, seemed sure of their conclusions and recommendations, and insistent that my parents accept their inescapable logic. Most of them were well intended. But it was not without cost, both emotionally and financially, that my parents’, to their credit resisted. Many other parents of the retarded, lacking resources complied.

To no ones’ surprise, I also had to fight my way through what was happening in my family and had my own battles with professionals. Were I growing up today, it’s highly doubtful that I would have escaped expulsion from school or jail. (I still have a chance at the latter, but I digress.) In this “No Child Left Behind” test dependent age, I would have no doubt brought down the school average to such a point that I would not likely have survived. I made it through school, as have so many before me, because of a few teachers who thought it their responsibility to be thoughtful educators first and testers second. In looking back, I have never been hurt as much by people who disliked me and meant me ill as I have by those who professed to help me.I made it through school because of a few teachers who thought it their responsibility to be thoughtful educators first, and testers second.

Having now accumulated a couple of professional degrees, and seeing enough instances where technical expertise is useful, if not essential, I will not dismiss the value of professional training and experience. Should I be sick or in trouble, I will seek out the opinion of a certified doctor, a licensed attorney or counselor. I will not, however, cede to them the authority or responsibility for making decisions about my life. Because of the strong techno-rational slant of our culture, as Ivan Illich poignantly noted, professionals are often accorded, beyond the respect they deserve, the dubious mantle of being the high priests of knowledge and the guardians of the ‘right answer.’ Sometimes the training and education of the professionals allows them to feel entitled; just as often, however, people are all to willing to give them that power and authority without question.

If 35 years ago I was not clear about why I gravitated toward the study and practice of conflict mediation, I am now. This is one of the few places in the professional landscape where people are accorded the right, dignity, opportunity, and support necessary to make their own decisions. In mediation, the professionals are taken off center stage and shifted to the role of valued consultants, the parties’ involved become the primary deciders. The attractor, for me personally and professionally, is the foundational principle of mediation practice: that people in conflict, to the greatest extent possible, can make better decisions for themselves than anyone else can make for them, including professionals.

-So the list serve posting bothers me because it challenges my personal investment and professional dedication to mediation practice as a means of forestalling and countering what I perceive to be the ever growing risk of tyranny by professionals in our culture. While not intentional, screening to determine capacity and fitness to mediate, can be pernicious nonetheless. Protocols can easily slip into becoming misguided efforts to subvert the first principle of mediation, parties’ self determination. The mediator becomes a de facto gatekeeper deciding who is capable to mediate. A string of thoughtful responses to the posting suggests an unsettling and continuing drift in this direction.

One person wrote, “This is a challenging task... Not only because of the mental processing but also because of the diversity in mental processes present in each diagnosis. For example even within a schizophrenic population there are varying levels of social function and response to medication and this population is often found in the supportive housing program. This is a major undertaking especially when you cross the line from personality disorder to psychosis. Nevertheless I deeply appreciate any effort to serve that population with a sincere listening to their issues and interests. You....may want to start with William Eddy's High Conflict Personalities. It is more focused on mediation involving personality disorders.... At a minimum I would think a sensitive understanding of the population's unique way of seeing the world and processing information is vital.”

Another offered the work of Patrick Coy and Tim Hedeen, who wrote an article on "Disabilities and Mediation Readiness in Court-Referred Cases: Developing Screening Criteria and Service Networks." (Mediation Quarterly, 16:2, 1998; http://www.mediate.com/articles/cohed1.cfm ). “The authors considered ways of assessing the capacity of disputants that affects their ability to participate meaningfully in a mediation process and offered a screening protocol to evaluate whether the disability would preclude participation in mediation.” (italics mine).

The title of another suggested resource is similarly telling of the encouragement for the the mediator to assume responsibility as process gatekeeper: "From Determining Capacity to Facilitating Competencies: A New Mediation Framework," S. Crawford, L. Dabney, J. Filner, P. Maida, Conflict Resolution Quarterly, 2003, 20:4 , 385-401.

For some mediators, this responsibility to assess fitness might appear to be a reasonable progression of the conflict management field toward becoming more professional. Making such assessments would seem to offer mediation practice the trappings of a more scientific methodology. But there are serious risks and places the professionalizing of mediation practice ahead of maintaining a standard of professionalism. A dozen years ago, John Haynes, one of the original promulgators of formal mediation practice, offered that ““the best, and perhaps, only experts are the people themselves.” If mediators’ become the arbiters of parties’ competence to negotiate, they risk undermining the integrity, quality, and acceptance of mediation as a viable mode of conflict management. That evaluative role draws mediators away from their unique and primary purpose of aiding people in the management of their difficult conflicts, and lures them into becoming just another expert. For a mediator to make a determination about the competence of someone to negotiate on the front side is no less intrusive than making a judgment about what the proper and reasonable outcome of a matter should be.

I have, over the years, mediated divorces, family conflicts, business matters and a few minor riots on the wards of psychiatric facilities, involving participants, one, both or all, who had been, could have been or should have been diagnosed and 'certified' under the DSM II, III, IV (is there a V yet?). Their special labels ranged from:

  • a couple with a child, both developmentally disabled ;
  • a number of people diagnosed with 'bipolar affective disorders;'
  • many with learning disabilities or various kinds;
  • countless people with personality disorders;
  • of course, many clients with substance and drug 'abuse' issues (now known as performance enhancing drugs?) ;
  • a whole lot of 'narcissistic' corporate types---not limited to the boardroom or to the management side----who could compete with Daniel Day Lewis's performance in There Will Be Blood;
  • many matters involving spouse abuse, emotional and physical;
  • some 'bullies' (I don't think this label-diagnosis has made into the DSM (Diagnostic and Statistical Manual of the American Psychiatric Association) yet, but have every confidence it will be soon) (see: “The Mediator As Moralist Bully”, http://www.mediate.com//articles/benjamin21.cfm , 2003);
  • matters involving elder abuse in families and nursing home facilities;
  • child abuse and neglect, including sexual abuse;
  • obviously, in this day and age, people enduring clinical depression, brought on by the conflict or resulting from it;
  • some who had undergone electro-convulsive treatment and experienced the loss of short term memory;
  • varying displays of obsessive compulsive disorders;
  • a number of people involuntarily hospitalized having suffered a psychotic episode that resulted in serious physical injury to family, children or infants;
  • countless family mediations where the 'YUTE' (My Cousin Vinny) involved, had run away from home and diagnosed as having the all-purpose adolescent adjustment reaction;
  • and, not a few sociopaths, who as best I can tell, held to their agreements as well as anyone else.
Many, although not all of those matters, were formal mediations; every one required the extensive use of negotiation and mediative strategies. In many, I was a de facto mediator, appointed as a Guardian Ad Litem by a judge to represent childrens’ interests in divorce, juvenile delinquency or neglect matter, or a patient in an involuntary hospitalization, or a stroke victim or elderly person in guardianship proceeding, with the expectation being that a workable settlement might be obtained. Judges, often recognize the difficulty of many of these situations and the limits of the legal system to effect any sensible outcome. Admittedly, some simply would not or could not sufficiently focus or communicate, because of their circumstance, or because of drugs administered, legal or illegal. Most, however, despite their circumstance, were interested in making decisions for themselves, insofar as they were allowed to do so by the supervening authority. For those who were on the line between able and willing or not, the disability became evident situationally soon enough----one or both parties left. Only in a few instances was it necessary for the mediator to terminate the negotiation. Many times there were other mediative settlement strategies available other than the conventional face to face format.

I have serious reservations about the validity and reliability of a Pre Screening Protocols being suggested for use in or out of a court setting in preparation for conflict mediation, and the thinking that would give rise to their use. I don't doubt that screening inventories and psychological testing might be of value in some contexts, most obviously as preparation for therapy, but conflict mediation is not therapy. I also admit that I have a personal bias against such psychological testing, having flunked the MMPI, the Meyers-Briggs, and other tests on numerous occasions. Many who know me, won't doubt that for an instant.

In looking back over some 30 years of mediating, I observe that many of the clients I have worked with presented as "normal." As anyone who has experience in the field is likely to attest, most people who are in conflict are anything but normal and distinguishing the diagnosed from the undiagnosed is challenging at best. I confess that many of the 'normals' I have worked with, often appeared to be 'certifiable' and those labeled as ill or deviant, often acted quite thoughtfully.

It is essential for mediators’ to study how people’ tend to construct their realities and negotiate. In that light, it is valuable to pay attention to how people with disabilities might tend to approach conflict, alongside many other variables, including sex, race, gender, health, religion, culture, personal experience, and countless other considerations. Mediators’ however, cannot afford to be preoccupied with a persons’ psychological make-up, isolated from other factors. While the traditional professions’ have the luxury of being able to presume to diagnose and make predictions about a patients’ or clients’ behavior, the negotiation process is far more fluid and dynamic and cannot be similarly constrained or confined. People are often required to make hard decisions for themselves in less than ideal circumstances. The question is not can they or should they be allowed, but rather, how might they be supported to the greatest extent possible to make the best decisions they can in the situation.

For conflict mediators, the notion that people can or should be pre-qualified to negotiate is especially risky. Such screening has not been proven to be reliable, valid or useful in dispute management. It is at best a distraction, and at worst, quite possibly misleading. There is no reason or evidence, to support that someone who is clinically depressed, bi-polar, or developmentally disabled cannot make good decisions for themselves and benefit from mediation.

The notion that there are inventories, protocols or other instruments by which to evaluate people’s capacity to negotiate agreements is appealing and seductive. In our rationalist culture, we all are led to believe we can understand and catalogue behavior. The real question may not be about a person’s capacity to mediate their conflict, but, rather, about the mediator’s capacity. If we are to screen at all, maybe it should include an evaluation of the mediator’s fears or concerns even before there is any review of the client’s supposed disability. A mediator’s fear of working with someone identified as a schizophrenic may well be as much, if not more, debilitating and an impediment to reaching a workable agreement than any dis-associative behavior the client might display.

As an alternative to a mental health screening, if a mediator wants to better appreciate the possible impact of a persons’ affective bi-polar disorder, depressive state or other circumstance, on the negotiation process, just ask . Unless or until a person demonstrates an inability to effectively participate, the working presumption should be that the capacity exists. In the conflict management context, the assessment should be based solely on an ‘in the room’ interactional assessment of the party’s ability to make substantially informed decisions, not influenced by the party’s presumed mental status or evaluation. Even when a party’s ability to understand is impaired, experienced mediators can often find ways to compensate. Finally, if ultimately, someone is precluded from mediating, then the question becomes what better alternative will be available for that person to deal with the issue or conflict he or she faces? And, is there a professional duty to provide that alternative?

February 1, 2008



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care.  A lawyer and social worker by training, he practiced law for over 25 years and now  teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally.  He is a standing Adjunct Professor at  the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities.   He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution.    He is the author of numerous book contributions and articles, including “The Mediator As Trickster,”  “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com. 

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Website: www.rbenjamin.com

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