Originally appeared in Mediation Quarterly, Volume 16, Number 2, Winter 1998/99
Close ties to the court system have greatly benefited community mediation over the past quarter-century. While these ties have provided critical support through referrals and funding, they are not without their difficulties. Consider the following scenario:
The small claims court referred Mr. Richards to the community mediation program for assistance with his dispute. During his initial meeting with a case manager, he outlined a series of problems unrelated to one another and involving a variety of neighbors. When asked to specify which concern he wished to address through mediation, he focused on a rake that his neighbor next door had stolen from him two months ago.
The case manager probed for some background concerning this matter, and Mr. Richards indicated that he had first acquired the rake when he found it leaning against this neighbor’s garage in the alley behind their houses the previous Fall. His growing agitation indicated that he was very upset by his neighbor’s actions, and he explained that he had gone to court because he couldn’t speak directly with his neighbor. He provided his own and his neighbor’s contact information, and then left abruptly for another appointment.
The case manager in the above scenario was unsure of how to proceed–as she had listened to Mr. Richards describe his situation, she could not ascertain how he conceptualized the conflict. Was he viewing his role as that of burglary victim? Did he think that his found rake could not have been his neighbor’s? Based on his initial disjointed presentation of his concerns, would Mr. Richards be able to represent his interests and desired outcomes in mediation?
This article focuses on a genre of conflict resolution cases that have received too little attention in the mediation literature: those where a disputant’s psycho-social health and capabilities place special demands on community mediation centers, or, in more extreme cases, may make community mediation a poor choice of dispute resolution venue. In the scenario above, it is not clear that mediation would be an appropriate avenue for Mr. Richards’ concerns, based on his erratic behaviors in the intake interview. We review the existing literature and current practices regarding what we call “mediation readiness,” we develop screening criteria designed to help case managers and mediators recognize and respond to such cases, we offer an example of a case where such criteria could be usefully applied in a community mediation center, and we suggest ways that mediation centers must become more accessible and responsive to the needs of the entire community.
Regardless of their financial sponsorship by courts, private nonprofits, or other public entities, there is a widespread belief in the mediation movement that most community mediation programs receive a sizable number of their cases through the court system (Ray 1997, p. 75). What little empirical data exists on this question indicates that this belief is likely warranted. New York state’s Community Dispute Resolution Centers Program was founded in 1981 and now provides mediation centers in each of its 62 counties. Over 41,000 cases were handled state-wide in these centers in a recent year–38% of these were referred from the court system (CDRCP 1997, p. A2) . Moreover, our analysis of the National Association for Community Mediation’s 1997 Membership Directory indicates that over 48% of member programs self-reported that they receive at least half of their referrals from the courts.
Case referrals from the courts to mediation centers commonly happen in at least four ways: (1) claimants seeking to file in civil matters are often encouraged by court staff or various media (posters, brochures) to attempt mediation first; (2) community mediators attend court sessions and work with disputants prior to their case being heard by the judge or upon the recommendation of the clerk or judge; (3) for some criminal matters, the prosecutor and/or judge will conditionally postpone trial and direct the case to mediation; or (4) many states and courts have mandated alternative dispute resolution for civil cases, and often route cases to community mediation programs.
As studies continue to document the usefulness of community mediation in each of these arrangements (CDRCP 1997) (McGillis 1997) (Wissler 1995) (Clarke and others 1993) , court systems and mediation centers have tried to routinize mediation in the justice system case handling process, often with little critical reflection on the deleterious effects this may have for either the disputants or the mediation movement. While the mediation programs gain both cases and public exposure through court referrals, they also gain inappropriate referrals. Through both civil and criminal courts, individuals and cases that would not otherwise go to mediation are often directed to community programs. However, many cases are referred not on the basis that mediation is an appropriate service, but because it is perceived as less inappropriate than the court process.
We now turn to a deeper examination of one area where mediation’s close ties to the court system often negatively effects mediation and disputants themselves. Among the court-referred cases that are nevertheless inappropriate for mediation are those where one or more of the disputants lacks the social skills or the mental health to adequately function in a highly-charged facilitated negotiation process. After briefly exploring the literature on this subject, we develop a screening criteria for use in mediation centers and provide a case analysis where the criteria is applied.
Disputants reflect the society of which they are a part, and as such come from all walks of life. However, not all walks of life are proportionally represented in the disputes that are mediated at community mediation. Analysis of cases handled by community mediation centers in New York state over a five-year period found that “Whites” were underrepresented relative to “Blacks” and “Hispanics,” that females were more likely to participate in mediation than men, and that individuals in lower income strata (less than $16,000 per year) constituted a two-thirds majority of respondents (Hedeen and Moses 1993, p. 250-254) . Even though certain groups may be more or less proportionally represented in community mediation, the disputants who use community mediation do in fact arrive from a variety of socio-cultural backgrounds, with differing histories, interests, and amounts of power. But they also arrive with differing abilities. While the literature is robust regarding how mediators ought to recognize and respond to cultural and gender differences among disputants, the issues of differential cognitive and emotional abilities between disputants, and the question of the mental health and social skills of disputants, have been much less examined in the mediation literature. We suspect that this is the result of three factors.
First, a literature usually follows behind and develops at a slower pace than does the emerging field of practice to which it is tied. Second, the relatively youthful nature of both community mediation theory and practice means that the literature is bound to contain some rather large gaps since the most critical and foundational issues are attended to first. As the field matures, attention is gradually turned to more specific and detailed concerns that have emerged more clearly over time. Examples for the mediation field include the topic of this paper: the pyscho-social health and mental abilities of the disputants. We suggest, moreover, that an equally important reason why these issues have been largely ignored is the fact that addressing differential cognitive or emotional abilities of disputants puts mediators in a situation that is both dangerous and delicate.
It is dangerous because few, if any, community mediators are trained in mental health diagnosis and psychological assessment; these analytical processes are difficult enough even for highly trained and skilled professionals who have ample assessment time with their clients. Moreover, the potentially negative effects of labeling associated with psychological and cognitive analysis are serious even when the diagnosis may be relatively accurate. For mediators to make such assessments is further complicated because a major strand of the community mediation movement evolved out of an ethic of empowerment (Laue 1982; Scimecca 1991), especially in regards to traditionally low-power and disenfranchised sectors of society. This ethic was also wedded to a belief in the potential capability of every citizen to manage their own disputes in a constructive manner, especially with access to skilled third party help through community mediation centers. For mediators to pass negative judgments on the cognitive and emotional abilities of a disputant may easily contradict the ethic of empowerment that has fueled much of the mediation movement’s development. While the literature in this area is therefore understandably sparse, some examples will provide a wider and more useful context for the discussion that follows.
An early yet incomplete approach is found in Davis and Salem (1984, p. 24). While addressing how community mediation ought to respond to power differentials they list six conditions when a mediation ought to terminated. Two are particularly relevant: when a party does not fully understand the mediation process; and when a party lacks the ability to identify their interests and to weigh the consequences of an agreement. Unfortunately, Davis and Salem set a pattern that has continued to this day in the literature: while identifying potentially useful criteria for participation in mediation or conditions for termination, they do not address how a mediator is to apply the criteria and to make the assessments of disputant abilities that the criteria often require.
Allan Barsky (1995, p. 33) suggests that in making a determination regarding appropriateness, mediators should consider the risk of abuse, power imbalances, and the “ability of each party to negotiate.” He proposes that the most meaningful question revolves around whether the person has “the capacity to participate fairly and fully in the proceedings.” Kelly (1995, p. 93) advises that “notable differences” in the “cognitive styles and capabilities” of the disputants may lead to power imbalances in mediation. Kelly proposes that mediators ought to ask themselves whether the parties are “reasonably similar with respect to intelligence and their ability to master new material. Is one party more easily confused?” Without suggesting precisely how a mediator would make such a determination, and without acknowledging the delicate and dangerous nature of such an enterprise, she argues that mediators must recognize these differential capabilities and employ tactical interventions designed to mitigate the advantages the differences may bestow on one party over the other. Although Clement and Schwebel (1997, p. 202-203) acknowledge that mediation has not yet been shown to be useful within mental health delivery systems in disputes involving people with mental illnesses, they argue that it is likely to be useful in that setting provided that “fundamental” adaptations are made to the mediation process and that the mediators have at least a working knowledge of mental illness and the mental health system. Peter Maida (1997) has identified ten insightful considerations that must be kept in mind when mediating disputes involving people with physical or mental disabilities.
Sarah Childs Grebe (1989) analyzed a divorce proceeding she mediated involving a disputant who was in treatment with a psychologist for severe depression. She used the mediation as an example of the ethical issues mediators face when dealing with what she called “psychopathology” cases. This disputant (Mrs. Parsons) was withdrawn, made comments regarding suicide during the mediation, and was “very hard to engage” in the mediation process. When the mediator commented empathetically on the difficulty of her situation, Mrs. Parsons “exploded and angrily accused the mediator of patronizing her.” The mediator later suggested postponement so that Mrs. Parsons could come to terms with a divorce that she did not want and that was severely threatening her financial viability. Grebe hoped that when Mrs. Parsons returned to mediation she would be able to more fully participate in the proceedings. Mrs. Parsons became angry at this suggestion and accused the mediator of “implying that she was incapable of proceeding.” With her permission, Grebe tried to contact and work with Mrs. Parson’s psychologist in a coordinated fashion, but the psychologist never returned Grebe’s calls. Grebe reports that in a subsequent session the disputant quickly made an “astounding” and inexplicable turnaround, fully participated in the decision making, apologized for her earlier foot-dragging, and even offered to be a resource to future disputants unsure about mediation.
Grebe says that this case “illustrates why pat guidelines do not always work in identifying appropriate mediation clients.” She concludes her analysis by saying that while Mrs. Parsons did not appear “fully capable of effective mediation” when the couple first arrived at mediation, the mediator’s refusal to take the case would “not have been in their best interests.” Despite the fact that as the mediator of this case she was not able to obtain the cooperation of the disputant’s therapist, Grebe says that the case demonstrates that before proceeding further “the mediator should be confident of a therapist’s support for a client in the mediation process.”
The Mrs. Parsons case is a helpful demonstration of the dangers of rushing too quickly to judgment regarding the capabilities of disputants. Moreover, our personal experiences suggest that mediations tied to such traumatic events and disputes as divorce, separation, job dismissal, child custody, and property division may, in certain situations, severely affect and diminish the capabilities of any one individual to engage in mediation. What may be important in these cases is the connection of the incapability to the trauma itself. To put it in common medical terms, Mrs. Parsons is an example of an “acute” case; the incapability that the mediator confronts in a disputant in such cases is most probably temporary. The incapability may be severe and perhaps debilitating in a number of cognitive and emotional ways, and it likely requires professional attention before the disputant will be ready for mediation. Still, if it is clearly tied to acute or intense events it is therefore unlikely to be a permanent feature of the disputant’s personal makeup.
In such cases a number of responses from the mediation case manager or the mediator are appropriate, e.g., a postponement, a referral to counseling, a series of caucuses, individualized coaching, a coordinated approach with other helping professionals or advocates already working with the disputant. Various combinations of these tactics–while admittedly a stretch for typically resource-poor community mediation centers–may, in fact, be required if mediation is to truly serve the needs of disputants who are suffering from acute, but likely temporary incapability. What we are talking about here is “mediation readiness.” For cases like that of Mrs. Parsons, mediation coupled to other sorts of professional services or semi-professional interventions may become part of the recovery or healing process associated with trauma or crisis-related disputes.
A person with a learning disability like auditory processing disorder will likely have difficulty following what others are saying, and may also have trouble putting her own thoughts into logical sequences. Someone with bipolar disorder may also jump from topic to topic while speaking quite rapidly. We believe that these sorts of disabilities can also be usefully accommodated with a sensitive, flexible, service-oriented approach to community mediation. But for mediation to truly serve the needs of such disputants requires mediator awareness of the disability followed by mediation process adjustments appropriate to the specific disability or incapacity. These are extremely difficult issues for mediators and those doing intake screening at mediation centers. Many cognitive and psychiatric disabilities are relatively hidden and far from immediately obvious. Yet they may interfere to varying degrees with a disputant’s ability to communicate and negotiate effectively. Moreover, disputants with disabilities have confidentiality rights that must somehow be balanced with the mediator’s need to know about the disability in order to make the mediation process accessible to all parties. If disputants with disabilities choose not to self-identify as disabled before a mediation commences, the mediator has few options other than to caucus and discuss problems or behaviors without framing them as a disability. For those disputants who do self-identify, intake staff and mediators ought to employ disability etiquette, listen well, validate their needs, and make useful process adjustments whenever possible. For example, people with stress-related disorders or with Tourette Syndrome will likely benefit from occasional breaks and access to a private “time-out” room where they may privately release pent-up energies or vocalizations (Cohen 1997).
Disputants with some disabilities may only be good candidates for mediation under certain conditions, for example, if they have been recently consistent in taking their prescribed medications. But verifying these sorts of conditions is a tall order for community mediation centers, at least as many are presently constituted and staffed. Educating disputants with certain emotional or mental disabilities about the mediation process itself may also require more skillful, extensive, and time-consuming intake, orientation, and coaching procedures than is presently within the reach of many community mediation centers, where volunteer mediators and office interns are the norm. For example, multiple studies have repeatedly demonstrated that individuals with learning disabilities are more likely to also develop social skill deficits, including giving and receiving critical comments, negotiating, and asserting (Roffman 1998; Larson 1998). Of course, these are all skills that are integral to healthy resolutions of conflict.
Some disputants, including those with serious cases of Fetal Alcohol Syndrome, may not be appropriate for mediation. Fetal Alcohol Syndrome symptoms include an inability to determine cause and effect and an inability to make inferences from the general to the specific or the specific to the general. Such people may come to understand that it is “wrong” to shoplift at the regional mall without realizing that it is also wrong to shoplift at the corner drug store owned by their neighbor, where the deleterious community effects of their shoplifting are perhaps even greater. Mediation is unlikely to be an appropriate part of a response for disputants whose mental and emotional incapabilities are seriously debilitating, chronic, and stable in their manifestations. Yet the number of interactions between mediation centers and these types of disputants has lately increased primarily for three reasons.
First, the massive deinstitutionalization of people with disabilities that was accelerated during the Reagan-Bush years and has largely been maintained since then has changed the social demographics of the street population. These changes are especially prevalent in the helping professions, to which mediation services belong. Second, the Americans with Disabilities Act, passed in 1990, calls for the use of alternative dispute resolution to resolve discrimination complaints involving people with mental and physical disabilities. Finally, as mediation is increasingly used for criminal cases as well as civil cases, so too does the likelihood grow that some disputants may have antisocial personality disorder (ASPD), a virtually incurable disorder that frequently occurs in criminal offenders. According to the American Psychiatric Association diagnostic criteria, such people make agreements with little concern for keeping them and have low regard for the truth; their ability to be concerned about the long-term consequences of their actions is seriously impaired.
Minimalist Approach to Criteria
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.
At the same time, we want to honor and protect what might be called the integrity of the mediation process. There are certain disputant capabilities without which the mediation process—at least as it has come to be practiced in the North American community mediation center context—ceases to operate effectively. The mediation movement must fashion a creative, useful tension between protecting the integrity of the mediation process and meeting the conflict resolution service needs of all members of the community. Consequently, the criteria we suggest should be seen as a minimalist approach to requirements for a disputant’s participation in community mediation—but requirements nevertheless. The minimal requirements for participation in community mediation include the ability to
1. See how specific issues are related and connected to each other, especially in a conflict situation.
2. Focus on one issue at a time.
3. Understand cause and effect, match events and their consequences, and tie behavior to its effects on others.
4. Take responsibility for one’s own actions.
5. Conceive of, use, and respond to formal, businesslike, common measures of time in the context of scheduling and deadlines.
6. Comprehend the nature of a behavioral commitment.
7. Identify desired outcomes.
8. Understand the mediator’s role and distinguish it from that of a judge or a police officer.
Applying the Criteria
Note that we do not suggest that disputants must be able to identify and distinguish interests from positions, which is a foundation of the principled negotiation approach to mediation (Fisher and Ury, 1990). That approach that dominates the field. Although this is commonly viewed as a valuable negotiation tool, we believe it asks for more than is necessary. Many people, whether mentally ill or completely healthy, do not possess that ability on entering mediation. Indeed, in our training work with prospective mediators and with students in the college classroom, we find that many people need considerable help initially if they are to understand the distinction between positions and interests. More important is the fact that they tend to require multiple opportunities to apply the distinction before they have mastered it, to say nothing of being able to make these distinctions on their own while embroiled in a conflict. Although distinguishing between a disputant’s positions and interests is often critical to mediation success, it is the mediator who must be able to do this and who can then help the disputants recognize and understand the distinctions.
As we noted earlier, we think that criteria like those proposed here obtain their greatest meaning and usefulness if they are accompanied by some counsel regarding how to apply them in the field. How can case managers and mediators actually determine if a particular disputant does not measure up to one or another of the criteria? We do not have a complete answer to that thorny question, but we can offer a partial one.
The first counsel is that, when applying these minimalist criteria, it is best to conceive of them as a very wide screen. This is especially important for mediation center case managers who do intake. In the hands of a skillful and seasoned case manager, this wide screen can be used to sift through a range of disputant behaviors encountered during the intake and scheduling procedure. Most interactions with potential clients will fall through the wide screen, but when one or more inabilities surface and remain on the screen, case managers ought to take this as a suggestion that a disputant may not possess the minimal capabilities for effective mediation.
Examples from our own experience include disputants not making previously agreed-to phone calls, being unable to schedule meetings, showing up for meetings or sessions on the wrong days, calling the intake person three to five times a day, exhibiting phobias that do not respond to repeated reassurances or reflective listening, engaging in social behavior that is grossly inept or inappropriate, consistently failing to follow through during the scheduling process, and taking erratic or unpredictable turns in conversation, demeanor, or behavior. In the case involving Mr. Richards at the outset of this article, his apparent incapacity to link his “finding” the rake against the neighbor’s garage and his neighbor’s “stealing” of it from him, as well as his difficulty in identifying and relating the specific problem in question, are hints that may indicate reason for concern.
We emphasize, however, that these are seldom more than hints. They are like small red flags in a gentle breeze—easy for case managers to overlook or to misinterpret. Indeed, some of these behaviors, especially if relatively isolated, may be simple conflict avoidance or coping tactics and have nothing to do with incapacities or disabilities. Similarly, some may have deep cultural roots and must be responded to with the selection of culturally appropriate mediators and the use of culturally sensitive adaptations to the mediation process. Yet if more than one of these are present, the case manager should then look a bit more closely at other disputant behaviors, perhaps by asking a series of questions. In some cases a confirming pattern may emerge, suggesting that mediation may not be the most appropriate venue at the moment unless other efforts accompany it. The case manager can then respond by calling for a temporary postponement accompanied by referrals, setting up coaching sessions, bringing in mental health or social work experts as advocates, selecting mediators with special expertise, and briefing the mediators about potential problems. The mediators may then make the appropriate adjustments, trying to tailor the mediation process to fit the needs and abilities of both parties as well as possible. In some cases, however, the most appropriate response by the case manager may simply be cancellation of the session and referral to other helping professions and service networks.
Mediators should apply this same screen. It is unfortunate but nonetheless true that disputant incapabilities are probably more likely to surface during mediation itself than during the inadequate intake procedures that are currently much too common in most community mediation centers. Mediators can look for the following clues: 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.
In order to demonstrate the kinds of cases referred from the courts in which the eight criteria and behavioral hints could be helpfully applied in the field, we outline a case that both authors worked on—one serving as case manager, the other as co-mediator. There were various hints during both intake and the mediation itself that this case was inappropriate for community mediation. The small red flags were flapping gently, we just did not yet know what they meant. Our experience with this and similar cases provided the impetus for us to pursue these issues in greater depth.
The Fitch-Spencer Case
The major parties in the long-running dispute were two married couples, Eugene and Doris Fitch and Ron and Carol Spencer. Eugene Fitch and Ron Spencer were cousins who had spent much time together growing up. Both of the Spencers claimed that Eugene Fitch had always known how to get Ron Spencer riled up and that he did so intentionally. Despite that history, the two couples had lived together for a number of years, and when the case finally came to mediation they were living across the street from each other. The Fitches frequently provided child care for the Spencer’s children, and the Spencers’ early-teenage daughter regularly stayed overnight at the Fitches’ house.
The case was referred to the local dispute resolution center by the district attorney’s (DA’s) office. The most recent series of altercations had begun with a violent incident arising from a family get-together and card game at the Fitches’ residence. Doris Fitch and Ron Spencer got into a heated argument, and the Fitches accused Ron of verbally threatening Doris, physically attacking her, and finally lunging at her with a ten-inch kitchen knife.
Ron was charged with second-degree menacing and fourth-degree criminal possession of a weapon and was released on his own recognizance. The Fitches also complained that Ron and his children had been tampering with their mail and harassing them, and that Ron was sexually harassing Doris as well. Doris requested and secured an Order of Protection against Ron Spencer.
About one month later, the Fitches filed another complaint saying that Ron, upon seeing them walk across a street, had stopped his vehicle and chased them down the street with a baseball bat, yelling threatening remarks. In the months leading up to the mediation, Eugene Fitch had repeatedly called the police complaining about actions of the Spencers that he perceived as threatening or in violation of the order. Ron Spencer was never arrested for violations in these cases; he consistently claimed that it was Eugene Fitch who was instigating interactions and attempting to provoke him. During the intake process, it emerged that Eugene Fitch conceived of the conflict as a series of individual confrontations and disconnected incidents. During phone calls in the case management process, Fitch was singularly focused on the latest interaction or perceived incident. Moreover, he seemed unable to recognize how the incidents were related to each other or to understand how cause-and-effect dynamics may have been at work in certain interactions (criteria 1 and 3). His excessive phone calls to the police and to the mediation center regarding apparently insignificant actions by Ron Spencer indicated an inability to understand the proper roles of various agencies or processes, despite having been repeatedly counseled about them. Similarly, Eugene Fitch had originally insisted that he would not agree to mediation unless there were police present at the sessions.
The mediators learned that Doris Fitch had been diagnosed as manic-depressive and periodically hospitalized for the condition throughout her adult life. Her marriage to Eugene Fitch was her second. Doris’s children from her first marriage had all been removed from her care by the state due to her negligence and her first husband’s violent abuse of her and the children. At the time of the mediation, Doris was about five months pregnant; she and Eugene intended to raise the child together. Eugene had not worked in years and was receiving supplemental security income due to his mental and social impairments.
During the mediation Eugene Fitch’s behavior was highly erratic; both mediators found it hard to read him, as his demeanor shifted swiftly from animated and engaged to stone cold and withdrawn. At other times he was inexplicably explosive. In a two-hour mediation that was marked by a number of tense and testy moments, Eugene Fitch was always the “instigator,” baiting both Ron and Carol Spencer with new accusations that seemed designed, often successfully, to provoke.
Throughout the extensive phone-call-based case management process and in the mediation itself, Eugene Fitch eventually emerged as unaware of the social implications of his actions. The center’s staff found him to be inconsistent in his presentation of the issues involved, and he seemed unable to recall the restricted role of the mediation service, even after repeated explanations (criterion 8). Toward the end of the second hour of the mediation, and after the parties had already agreed on some of the most pressing issues, Eugene suddenly declared that he was not going to sign anything that day, thereby making even a partial agreement impossible. He also began to bring up new and peripheral issues, some of which seemed quite irrelevant and unrelated to the issues previously identified and discussed (criterion 2), thus further derailing the entire process.
Doris Fitch’s behavior also gave the mediators cause for concern about her ability to function during a mediation. Despite having formally lodged many of the complaints, she was seriously withdrawn throughout the session. The female-male co-mediation team had to repeatedly attempt to draw her into the proceedings. It seemed to the mediators that this withdrawal was more than simply a defensive and therefore potentially healthy reaction to potential and real power imbalances. When she did participate, she often prefaced her remarks by referring to her history of manic-depression and saying that she simply could not handle all of the stress.
In a caucus session among themselves late in the second hour of the mediation, both mediators spoke of a dawning awareness that the case, and perhaps some of the parties, were not suitable or appropriate for mediation. Beyond the problems already mentioned, it was becoming increasingly clear that Eugene Fitch was unwilling and perhaps unable to think in terms of the future, much less to make a commitment and see it through (criterion 6). For her part, Doris Fitch’s severe withdrawal seemed uncooperative and further compromised the mediation process.
The complex of reasons just listed caused the co-mediators to terminate the mediation without a written agreement on any of the issues, escorting the parties out separately to avoid further incidents. Moreover, in post-mediation discussions among the co-mediators and the case manager, a consensus developed that the case was inappropriate for mediation. The mediation center returned the case to the DA’s office with the indication that the parties had met in mediation, that no written agreement was reached, and that the mediators found the case inappropriate for mediation. For a period of three months following the mediation session, the Fitches repeatedly contacted the victim assistance program of the DA’s office to report harassing behaviors by Ron Spencer. On at least one of these occasions, Doris Fitch indicated that her husband was also involved and may have provoked Ron. The order for protection was re-issued to prevent further incidents.
However, more incidents occurred; after police confirmed a claim by Doris Fitch, Ron Spencer was arrested on charges of criminal contempt. Based on the history of the parties and the judge’s feeling that the Fitches’ claims were not very credible, the case was re-referred to the mediation center. Following consultation with the DA, the mediation program contacted each party to talk about possible remedies through a conciliation process over the phone. The Fitches misunderstood the reasons for the calls and showed up unexpectedly at the mediation office. Based on the consultation at that point, as well as the response from the Spencers, the case was returned again to the DA with the recommendation that it not be returned to the mediation program, as many of the personal issues and dynamics did not lend themselves to a consensual problem-solving process such as mediation.
The mediation center staff accepted the Fitch-Spencer case amidst considerable doubts about its appropriateness for mediation. The case developments eventually confirmed staff hunches. A postcase examination of one of the disputants in the case (Eugene Fitch) and an application of the eight criteria suggest that he failed all of them except criterion 7 (the ability to identify desired outcomes).
Conclusion and Recommendations
Community mediation has developed rapidly in recent years, and its ties to the court system bring both benefits and challenges to a field still experiencing its adolescent growing pains. Court referrals constitute a large segment of community mediation’s caseload. Additionally, alongside courts are numerous other agencies and systems who are beginning to recognize the potential value of referring an increasingly wide variety of cases to mediation. Community mediation programs are regularly receiving cases of various fitness and individual disputants of various readiness for mediation. Some disputants may not be functionally equipped or ready to engage in a mediation process due to serious mental or emotional disabilities. Certain kinds of other cases, including those that involve disputants with less serious disabilities, offer challenges that community mediation is morally, and in some cases, legally, bound to meet.
To appropriately address cases like the Fitch-Spencer and the Richards cases, programs must develop screening methods for case managers and volunteer mediators. But that is only part of what is needed. The concept of mediation readiness cuts both ways. Just as mediation centers ought to ask whether specific disputants have the social skills and cognitive abilities that make them ready for mediation, so should centers ask themselves whether they are ready to accommodate the individual needs of persons with disabilities.
Community mediation centers must recruit and train mediators who have specialized skills and knowledge relating to the needs of the disability community and who may be best able to adjust the mediation process to account for disputant emotional and mental disabilities. Equally important is the fact that community mediation centers, especially those working on court-referred cases, must become much more nested within a network of other human service providers. When mediation centers encounter individuals who require services in addition to or other than mediation, they should be ready and able to make prompt and useful referrals for more specialized services and interventions, including advocacy, personal therapy, family counseling, social skills training, mental health services, legal and financial assistance programs, and more. By coordinating with these services and agencies and by offering a sensitive and flexible approach to the mediation process itself, mediation centers can play a valuable role in weaving together a comprehensive service net for all citizens engaged in problematic conflict.
Barksy, A. E. “Issues in the Termination of Mediation Due to Abuse.” Mediation Quarterly, 1995, 13 (1). San Francisco: Jossey-Bass.
Barksy, A. E. “Mental Illness, Mental Capacity, and Negotiation Competence.” Interaction, 1996, 8 (3), 9-12..
Clarke, S. H., Jr., Valente, E., and Mace, R. R. Mediation of Interpersonal Disputes: An Evaluation of North Carolina’s Programs. Chapel Hill: University of North Carolina Institute of Government, 1993.
Clement, J. A., and Schwebel, A. I. “Mediation: An Intervention to Facilitate the Empowerment of Mental Health Consumers.” In E. Kruk (ed.), Mediation and Conflict Resolution in Social Work and the Human Services. Chicago: Nelson-Hall, 1997.
Cohen, J. “Making Dispute Resolution Sessions Accessible to People with Disabilities.” SPIDR News, 1997, 21 (2), 1, 14-15. Community Dispute Resolution Centers Program. Albany: New York State Unified Court System, 1997.
Davis, A. M., and Salem, R. A.. “Dealing with Power Imbalances in the Mediation of Interpersonal Disputes.” In J.A. Lemmon (ed.), Procedures for Guiding the Divorce Mediation Process. Mediation Quarterly, no. 6. San Francisco: Jossey-Bass, 1984.
Fisher, R., and Ury, W. Getting to Yes: Negotiating Agreements without Giving In. New York: Penquin, 1990.
Grebe, S. C., “Ethical Issues in Conflict Resolution: Divorce Mediation.” Negotiation Journal, 1989, 5, 179-190.
Hedeen, T., and Moses, P. “Alternative Dispute Resolution Participation: A Preliminary Analysis of the New York State Community Dispute Resolution Centers Program.” In Proceedings from the Twenty-First International Conference of the Society of Professionals in Dispute Resolution, Washington, D.C., Society of Professionals in Dispute Resolution, 1993.
Kelly, J. B. “Power Imbalances in Divorce and Interpersonal Mediation: Assessment and Intervention.” Mediation Quarterly, 1995, 13 (2), 85-98.
Larson, K. “Conflict Resolution Through Social Skills Training for Youth with Learning Disabilities.” The Fourth R, 1998, 81 (1), 3-4, 27-29.
Laue, J. H. “Ethical Considerations in Choosing Intervention Roles.” Peace and Change, 1982, 8 (2/3), 29-42.
Maida, P. R. “Mediating Disputes Involving People with Disabilities.” In E. Kruk (ed.), Mediation and Conflict Resolution in Social Work and the Human Services. Chicago: Nelson-Hall, 1997.
McGillis, D. Community Mediation Programs: Developments and Challenges. Washington, D.C.: National Institute of Justice, 1997.
Ray, L. “Community Mediation Centers: Delivering First-Class Services to Low-Income People for the Past Twenty Years.” Mediation Quarterly, 1997, 15 (1), 71-78.
Roffman, A. “Ecological Social Skills Training: Another Avenue to Development of Conflict Resolution Skills.” The Fourth R, 1998, 81 (1), 9-10, 23-25.
Scimecca, J. A. “Conflict Resolution in the United States: The Emergence of a Profession?” In K. Avruch, P.
W. Black, and J. A. Scimecca, (eds.) Conflict Resolution: Cross-Cultural Perspectives. New York: Greenwood, 1991.
Wissler, R. L. “Mediation and Adjudication in the Small Claims Court.” Law and Society Review, 1995, 29 (2), 323-358.
1 An earlier version of this paper was presented at the National Conference on Peacemaking and Conflict Resolution, Pittsburgh, PA, May 24, 1997, and at the Colloquim Series of the Department of Political Science, Kent State University, February 18, 1998. We also thank Tom Buckner, Barbara Hart, Terry Amsler, Alan Barsky, Mike Wendt, and William Schultz for their helpful comments. The authors contributed equally to this article and are listed in alphabetical order.
Marvin Johnson discusses his frustration with the field developing rigid definitions and standards of mediation. He believes this has come from other professions influencing mediation.By Marvin E. Johnson