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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 Linda ,   Reynoldsburg OH    02/26/08 
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Recently, I had a case reach an early impasse and terminated the mediation. One party went from 0-60 in a matter of minutes and at that point I could not retain order sufficient to proceed. All of these comments are on target for me because it has been bothering me ever since. I feel the clients were dis-served for many reasons. A colleague dismissed my concerns with a statement to the effect that one party "was crazy." I am a new mediator and, for a number of reasons, have few options with regard to screening, coaching, scheduling and so forth; however, I do believe that Benjamin is right when he says that "managing an impasse is the true test of a mediator and we owe it to clients to be prepared for what we encounter as we enter into their dynamic. I agree with his concerns about excluding parties from mediation because it seems to me there are insidious cultural biases within a mostly white, middle class profession that limits a practitioner's capacities to navigate (using a Benjamin metaphor) the turbulence in a dispute when the rapids are fierce and treacherous. Had I been able to mediate that particular case on my own with my own parameters in place, I would have handled it differently. My concern is that, much like our failing school systems, good clients (rational, calm, prepared) get promoted to settlement while bad clients (disruptive, disrespectful, confused, etc.) flunk out of the process. I love to refer back to R.D. Laing who basically turned techno-rational psychotherapy on its head: "There is a common illusion that one somehow increases one's understanding of a person if one can translate a personal understanding of him into the impersonal terms of a sequence or system of it-processes....there remains a tendency to translate our personal experience of the other as a person into an account of him that is depersonalized." Many of white-bread professions are rank with this tendency and I'm grateful for practitioners like Mr. Benjamin who have the courage and insight to challenge conventional thinking, raise hard issues, and share his own extraordinary insights.
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 Robert Benjamin ,   Portland OR  rbenjamin@mediate.com      02/13/08 
 Robert Benjamin responds: 
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Judy Cohen, Director of Access Resources, commented that she thought I had over-reacted to the request for mediation resources and training available for individuals who work with adults who are mentally ill. She feels that good and sufficient precautions are taken to assure that people are not precluded from the mediation process because of their circumstance. Similarly, Tim Hedeen, a co-author of the article I cited, “Disabilities and Mediation Readiness...,” thought that I had mis-characterized and done a ‘dis-service’ to the piece by implying that they actively or routinely preclude people from mediation based on their mental capacity and commenting that the standards suggested are quite restrained and firmly err on the side of supporting people in the mediation process. Both they, and others, have sought to make this issue personal and offer that they thought this article was more a reflection and function of my personal experience rather than a real and present practice concern. I borrowed from my personal experience to viscerally grab readers attention to an important issue. The risk of professionals in general, and mediators in particular, to over-reach and presume to evaluate clients, is always a very real, present, and valid concern. I did not accuse the person requesting resources about the mentally ill of making any assumption or desiring to do so; in fact, I observed that the posting request was innocent enough. It was, however, a useful point of departure to discuss serious questions of practice. There is no refuting that pre-screening for domestic violence, child abuse, and other difficulties that mediators feel might impair the mediation process are widespread, especially in court and other community programs. In addition, there has been a strong push in writing and practice to suggest mediation is inappropriate in matters where ‘bullying’ behavior is present in schools or in the workplace. Similarly, many judges, lawyers, child advocates, social workers--- and mediators---- have taken me to task for suggesting that matters where ‘child sexual abuse’ has been alleged could or should be mediated. All of those circumstances smack of an explicit or implicit evaluation of parties’ capacity to mediate. This is not a academic issue I am pleased that great restraint and caution is being encouraged in our thinking and standards by Tim and Judy with regard to narrowly delimiting who has the requisite capacity to mediate conflicts and make decisions for themselves. However, I am also aware that as mediation continues to be institutionalized, good intentions to maintain the integrity of the mediation process can easily be warped by institutional pressures and pragmatic necessities. Mediators want work and are often willing to practice in a manner that compromises the process; mediation programs want funding and must build in protections against every potential, albeit remote, risk of liability; and, all too often, the people designing and administering mediation programs have little or no understanding of the process. This is especially so as programs move into their second third, or fourth generation of operation and the vitality of mediation is lost among formal protocols and policies of operation developed by risk-averse professionals that presume to divine who has the capacity to negotiate successfully. The article is not intended as an accusation but as a cautionary tale.
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 Pattie Porter,   San Antonio TX  pmporter@conflictconnections.com      02/12/08 
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Dear Mr. Benjamin, In reading your article and the comments posted by Cohen, Hedeen, and Cissy, I felt compelled to respond as well. There are two themes I will respond to: a) mediator’s own biases and cultural competence; and b) mediation accessibility. Any mediator needs to be aware of their own personal biases as it pertains to people with disabilities. As the reader Cissy comments “It is more the courage, flexibility and cultural competence of the mediator than it is the capacity of the clients.” In fact, research by the Department of Justice (DOJ) along with dialogue with people with disabilities…whether it be cognitive, physical, mental, etc., want to be considered “the expert” in what they know so intimately about themselves. However, they need for the mediator to have a sensibility or an increased awareness of disabilities. The mediator needs to be aware of their own assumptions or beliefs about any particular disability and how this may impact their interaction with mediation participants…and it does impact the mediation. So, where does a mediator go to increase their knowledge or support the parties in the mediation process? How do they make the session accessible to empower the parties and support self-determination? First, as I wrote in my article “Maximizing Effective Participation” (Porter, 2003, Mediate.com), “the pre-mediation planning, intake or convening process is integral to establishing ground for a productive mediation. During this stage, mediators often overlook the disputant’s ability to participate fully in the process. And mediators might miss the red flags that indicate there are limitations in working with a party. These limits may include the disputant’s ability to understand how the process works, the communication skill level to participate in an open dialogue, the emotional or mental capacity that allows effective communication, the capability of making informed decisions, or the ability to think abstractly about the consequences and the impact of their behavior or decisions on themselves and others.” As a mediator with a disability, I am very aware of how important it is to convene or conduct a pre-mediation session NOT to determine “fitness” or “party capacity” but to determine along with the person with a disability (PWD) how to make the mediation session accessible. This could mean using a “neutral expert” to support the parties and the mediation process. In an ADA (Americans with Disabilities Act) mediation, the neutral expert can play a useful role in assisting parties in a variety of ways. In a real case situation, I was preparing for an ADA mediation in the workplace. An employee’s job was on the line due to some of the challenges he faced with his multiple disabilities…bipolar disorder and a severe case of psoriatic arthritis. In convening with this employee, he shared what limitations he had in participating effectively or fully in the mediation process. The PWD believes having a neutral expert such as someone from the National Alliance on Mental Illness (NAMI) might be useful in the mediation process to provide information on bipolar disorders. This information could be helpful not only bringing awareness and understanding about the mental health issue, but to assist parties in dealing with accessibility or accommodation issues in the workplace. On a final note, mediators who work with PWDs, need to seriously consider reviewing the literature such as the ADA Mediation Guidelines, Department of Justice website, and articles at Mediate.com under ADA for a deeper understanding of these issues.
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 Mary Parker Follett ,    Me    02/11/08 
 Are Experts the Revealers of Truth? 
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Dear Mr. Benjamin, I write to tell you how much I enjoyed your article on experts. As you have probably heard me say before, "Experience may be hard, but we claim it's gifts because they are real, even though our feet bleed on their stones." You certainly have had a rich experience with experts, and bloodied toes as evidence. I also imagine, a few of those medical and other experts limped a bit after meeting you! You experience evokes memories of my own life stories, some of which I included in my own writing. My opening chapter of Creative Experience is titled "Vicarious experience: are experts the revealers of truth?" I needed to get the mythology of experts as a solution to all our problems out of the way before moving on to more uplifting topics! As I said then, "The present apotheosis of the expert, the ardent advocacy of "facts," needs some analysis. The question of democracy is often discussed on the assumption that we are obliged to choose between the rule of that modern beneficent despot, the expert, and a muddled, befogged "people." If the question were as simple as that, most of our troubles would be over; we should have only to get enough Intelligence Bureaus at Washington, enough scientific management into the factories, enough specialists (on hygiene, transportation, etc.) into the cities, enough formulae from the agricultural college into the country, and all life would become fair and beautiful.? For the people, it is assumed, will gladly agree to become automata when we show them all the things--nice, solid, objective things -- they can have by abandoning their own experience in favor of a superior race of men called experts." (page 3) Well, you know me by now, I can go on and on, but I only wanted to say that I found your comments about a very fundamental "ethic" in mediation to be most revealing and I am eager to hear the responses from your mediator colleagues! Warmly, Mary
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 Judith ,   New York NY    02/11/08 
 Capacity to Mediate 
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Dear Mr. Benjamin, I felt uncomfortable with your reaction to a person who made a worthy effort to gather information to help her serve her clients or parties. She simply asked for "....resources and training available for individuals who work with adults with mental illness...in a supportive housing situation." Many of us have explored together for years how to articulate appropriate ways to make the mediation process accessible to people who face obstacles to their full participation. Our concern is to make sure that people have the capacity to participate fully in the process and to exercise self-determination, whether the obstacles they face are psychiatric, cognitive, whether there are cultural differences, they are too angry to negotiate effectively, or whatever the obstacle may be. Many of us in the ADA mediation field were involved with recommending changes to the Model Standards of Conduct which were adopted, changes that take disability out of the capacity equation, reading in part: “If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in the mediation process, the mediator should explore the circumstances and potential accommodations, modifications, or adjustments that would make possible the party’s capacity to comprehend, participate, and exercise self-determination.” I feel that you made an assumption that the poster would use the information she requested to exclude people with mental illness from the process. You made a big leap from the poster requesting information to your commentary about screening people out of mediation, ceding to professionals “the authority or responsibility for making decisions about my life” and people terminating the mediation because of a party’s diagnosis. It appears that you assumed that the poster – or by implication any mediator who wants to learn about any parties’ background – is not concerned about people being “accorded the right, dignity, opportunity, and support necessary to make their own decisions.” Through the personal examples you provide in your lengthy response, it’s clear that this is a very personal issue for you. I respect that and I hope that you’ll come to reflect on how your beliefs may dovetail with others of us concerned about capacity to mediate, self determination, and full participation in the process. Sincerely, Judy Cohen, Access Resources
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