Comments: Escaping The Tyranny Of Professionals: Determining Fitness To Mediate?

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Linda , Reynoldsburg OH   02/26/08
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.

Robert Benjamin , Portland OR     02/13/08
Robert Benjamin responds:
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.

Pattie Porter, San Antonio TX     02/12/08
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,, “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 under ADA for a deeper understanding of these issues.

Mary Parker Follett , Me   02/11/08
Are Experts the Revealers of Truth?
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

Judith , New York NY   02/11/08
Capacity to Mediate
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 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

Tim Hedeen, Atlanta GA   02/11/08
Robert raises many good points here, not least of which is that mediators should not rush to judgment about a party's capacity. I note, however, that he would do well to heed this advice in his review of others' work: both Mediation Quarterly articles he sets up as advocating some heavy-handed, highly-exclusive screening are in fact highly supportive of working with (NOT screening out) parties who wish to mediate. While there may be resources promoting too narrow a screen for mediation participants, Robert does a dis-service to these two articles by setting them up as straw men to make his point. I'd ask readers to consider this passage from "Disabilities and Mediation Readiness..." (Coy and Hedeen): "Mediators must assess which cases are appropriate for mediation and which cases are best suited for other types of interventions or combinations of interventions. Because of the dangers and delicacies in applying any screening criteria in these areas, we think the only justifiable criteria for community mediation programs are those we term minimalist criteria. We fear that some of the suggestions put forward to date raise the bar too high, requiring more abilities and higher levels of emotional and mental health on the part of the potential users of community mediation services than is necessary. If an error is to be made here, we prefer to err on the side of lowering the bar too far, helping many more over rather than keeping more out. The community mediation movement ought to make as many adjustments as possible in order to provide services to all members of the community, including those who may in fact be in greatest need of dispute resolution assistance." Instead of arguing to screen individuals out, the essence is to seek opportunities to create a useful 'fit' between the process and the parties. I believe this runs parallel with Robert's belief that "Even when a party’s ability to understand is impaired, experienced mediators can often find ways to compensate." I hope mediators will heed Robert's advice, and will seek innovative ways to work _with_ individuals experiencing conflict to determine _together_ how mediation and related processes might be useful. Onward!

Richard , Petaluma CA   02/07/08
Robert Benjamin Article
I love this article. In this day and age of overwhelming, restricting and synthetic philosophies, diagnosis, and theories presented as factual amd "you better or else", it is refreshing to read something so flexible and insightful and consistent with growth and progress. I must admit that I was surprised at the end of the article to find out that Robert Benjamin is an attorney. It has been my experience, (and I have more than I like to remember) that attorneys are one of many professionals who are over educated and over trained to the extent that they abandon their organic wisdom and insight and quite frankly, in doing so, they abandon what would otherwise provide them with a genuine ability to help people, whether as a mediator, attorney, counselor, doctor and so on. Personally, as I approach each new situation, as a mediator or otherwise, I leave all of my training, education, theories, etc., outside the door as to not let it obstruct me from understanding people from a pure and untainted postion. I may draw on my experiences as it is appropriate, but again, I do not allow myself to predetermine any one or any situation by cluttering the experience with old information. The solution or resolution to people's conflicts lie within the person(s). I see it as my job to elicit that solution. The only way for me to do that is to focus on the individuals at hand, rather than distracting myself with past training, education and experiences. Again, I love the article and it has provided me reason to check myself and do as I say I do, which is to not prejudge attorneys based on past experiences. Thanks for the wisdom, Mr. Benjamin.

cissy , new york NY     02/04/08
I've been a community mediator since 1995 and I am mentally ill. When the discussion turns to mental illness or defect (a word I loathe) the issue of capacity to mediate has always intrigued me. Why is this segment of the population less entitled or able to benefit from the exploration and self-determination process that is the core of mediation? It is more IMO the capacity and/or willingness of the mediator to participate in a process that challenges his/her perceptions and assumptions. It is far easier to be dismissive than it is to travel with the party(ies) into their world, their premises and their interests. It is more the courage, flexibility and cultural competence of the mediator than it is the capacity of the clients.I'm so grateful this issue was so eloquently and effectively explored by Mr. Benjamin.

Steven , New City NY     02/04/08
Having watched, and admired, Robert Benjamin for many years, this article certainly reveals where some of his inner strengths, and mishagas, comes from. Aside from being careful about people with violent histories (which obviously includes domestic violence), the idea of screening people for all kinds of personality or mental problems is somewhat off-base. But screening is not what the original request was about. Rather, it seems to me that it was about learning and knowing more -- so that as a mediator any of us can serve better when we have some understanding of how different mental problems affect an individual's reaction to mediation. I see this as no different from developing cultural competency to understand how different cultures affect how individuals mediate. I would like to think that if my developmentally disabled son needed mediation in his group home, that the mediator would know more than the average person about the specific needs of developmentally disabled people. Peace, Steve Abel