How to Help Parties With Disabilities Without Discriminating

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When we perceive that someone may have a disability, it is common to think about ways to help that person.  But assuming that someone needs help is paternalism, and it can be a form of discrimination.  This article introduces disability microaggressions, demonstrates how they occur in Mediate.com’s published guidance about mental disorders, and shares best practices for being accessible to disability needs without inadvertently discriminating.

1. WHAT ARE DISABILITY MICROAGGRESSIONS?

A microaggression is often unintentional.  It includes subtle and indirect behaviors or interactions that show bias toward marginalized groups.  These can be negative statements as well as seemingly positive ones, and they can be actions as well as oversights, all of which end up communicating slights, insults, or snubs that are often laced with implicit, denigrating messages.[i] 

Ableism is the term for discrimination that treats people with disabilities as inferior to norms of “normal” ability levels, and devalues people based on their having a disability.[ii]  Because the Americans with Disabilities Act has helped reduce the likelihood of explicit discrimination against people with disabilities, much of the insults they now experience are covert microaggressions from people who are often well-intentioned.  Some common microaggressions, derived from a 2010 study by Keller and Galgay, include but are not limited to:

• Minimization of Disability Experience – Expressing attitudes that trivialize someone’s disability needs, ex. “Come on now, we all have some kind of disability.”
   
• Denial of Privacy – Asking what happened either directly or by “fishing” for it through indirect means
   
• Assumed Helplessness – Offering help based on guesses or observations about a disability, or assuming that the person has such extreme deficits that it will be too overwhelming to work with them (ex. suggesting the need to engage an expert or outside referral because of this person’s confusing, overwhelming needs).
   
• Infantilization – Treating people with the premise they are not able to do things themselves, or have less agency, like a child. “Let me do that for you.”

The above are four examples of many different types of disability microaggressions, selected here because they often feed into the paternalistic lapses that well-meaning mediators make when responding to disabilities.

2. HOW MICROAGGRESSIONS VIOLATE CONDUCT STANDARDS

The mistake in the above microaggressions is that the mediator relies on their own biased assumptions about a person’s disability and offers help using their own personal judgment that the person may need it. 

The Americans with Disabilities Act (ADA) gives people with disabilities extra rights to ask for reasonable accommodations so a mediator can adjust their process to make it work for them.[iii] However, the ADA is not a permission slip for the mediator to make their own assumptions about whether a party might need extra help, or what might be best for them.  Nor is it an invitation to call an extra expert in to give their opinion about someone’s disability.

The ADA is meant to empower the individual with a path to ask for the help that they want if they want it.  Separately, it prohibits unwanted differential treatment based on even the mere perception of a disability – this disparate treatment is legally called discrimination.

While the ADA prohibits discrimination from all kinds of businesses, mediators have an added responsibility to be fair.  Why is that?  Well, for mediators that fairness actually is their business.  Compromising impartiality means failing to deliver the intended, agreed-upon services and violating the ethical standards of the profession.  So, perhaps more than any other profession, mediators are discriminating when they act unfairly because they are denying the service the party actually came to get.

Standard II.B.1 of the Model Standards of Conduct for Mediators clearly states “A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.”[iv]

Key at issue is the idea that a mediator should not make any judgments or biases based on the person’s personal characteristics (ex. their disability or mental illness) or their performance at a mediation (ex. their displayed behaviors that may lead a practitioner to make guesses that the party needs help or assumptions about what specific help they may need). 

The next section will show a series of excerpts from Mediate.com articles that each offer guidance to act in a biased, inappropriate manner based on someone’s mental health problems.  These authors all appear to mean well, and likely did not realize that they were advising or exhibiting discriminatory conduct.

The final section of this article will discuss how mediators can be accessible to all people with diverse needs without singling anyone out or acting on personal hunches.

3. MICROAGGRESSIONS IN MEDIATE.COM ARTICLES

Even experts who are focused on providing support to people with disabilities can inadvertently perpetrate disability microaggressions.  Worse than that, these mistakes can become explicitly codified in written practices or advice, as is the case in the following six case studies presented from six different Mediate.com articles ranging from the year 2000 to the year 2020. 

For each of the following examples A through F, I will share an excerpt from the article and then provide commentary explaining why the excerpt is discriminatory:

A. Deciding to Pressure Settlement Because of a Belief a Person with a Psychiatric Disability “is Fragile” and Should Feel Shame Over Therapy Notes[v]

• "Look, Jim," I said, "If this was another plaintiff in another kind of case, I could see your point entirely. But, Jim, this plaintiff is just not up to it. She doesn't want to litigate any more. She doesn't want her therapist's deposition taken next week. You know what's in those notes, and so do I. From a lawyer's perspective, the case may well be 'worth' $75,000. But to your client, it's worth $60,000. She's willing to spend the other $15,000 to bury her therapist's deposition. She's sitting here crying, your partner Fred has recommended the deal to you, and they're practically begging you for your blessing. Your client is fragile. Please listen to what she and Fred are telling you."

It is inappropriate for a mediator to judge a person as fragile or endorse the idea that therapy notes are shameful.  Moreover, it is explicit discrimination to state that in a different case it would be wrong to settle but this one should do so because of the person’s mental health situation, and the supposed shamefulness of it.  It is wrong for a mediator to recommend a party literally pay a penalty due to their mental health condition.

B. Deciding to Speak Simplistically Based on a Guess of Mental Illness[vi]

• “For example, I once mediated a case involving a man who-unknown to me at the outset-has paranoid schizophrenia. We began the session well enough, as he was articulate in explaining his reasons for bringing the case. But when the other party began to speak, the man kept interrupting. Finally, it became clear to me that he simply could not bear to listen to the other person talk. I asked if he would feel more comfortable leaving the room while the person spoke. He replied in the affirmative, and I conducted the mediation session completely by private caucus. Initially I found during our caucuses that sometimes when I spoke, he would just stare down and would not respond to me. Based on that and other factors, I realized that he had mental illness. Knowing that persons with schizophrenia can have trouble following long, complex thoughts, I began to use shorter, simpler sentences, and presented ideas in a concrete way. This made it easier for us to communicate.“

This story explains that the mediator made their own guesses about the party’s mental health.  Instead of asking the party what they wanted, the mediator used their own judgment to pursue process changes they would not normally offer – suggesting they not see the other party, and talking in a different manner than they normally would.  They explicitly did this based on their own perception that this party had a mental illness.  The party did not disclose one.  Rather, the mediator “realized” it on their own because the person was occasionally not engaging.

The empowering way to handle this would be to address any challenging behaviors consistently across all parties.  No mediator should be making guesses about someone having a mental health condition, nor should they be making assumptions that such a condition necessitates a party be separated or spoken to simplistically.  Choices should be offered to the party instead of the mediator relying on their own ideas about the person’s potential mental health situation and what might be helpful for the diagnosis they are imagining this person might have. 

Put simply, we can respond to someone interrupting, looking away, and being nonresponsive without privately diagnosing them with a mental illness and then changing how we practice based on our personal beliefs about that label.

C. Deciding to Summarize Based on Assumptions About Bipolar Disorder[vii]

• “Persons with bipolar disorder may, in a manic phase, speak very quickly and jump from topic to topic. Being prepared for this allows the mediator to strategize about ways to handle it without making a judgment about the person's good faith effort to participate. For example, the mediator may decide to summarize frequently in order to ensure that she has not missed something. By summarizing, the mediator sends a signal that she places considerable importance on hearing everything the person has to say.”

Again, preparing differently under the assumption that someone with bipolar disorder will have a problem and deciding to handle that person differently based on the mediator’s own guesses of what could help someone with that diagnosis is an inadvertent form of discrimination.  If someone discloses a mental health condition and asks for an adjustment, that is very different from a mediator deciding on their own to start summarizing more frequently based on their personal beliefs of what is effective for someone with bipolar disorder. 

The appropriate practice is for a mediator to have consistent ways of responding to challenging behaviors without linking them to their guesses about someone’s mental health diagnosis.  A mediator should generally be prepared to respond when any party goes on tangents or quickly shifts topics.  They should not be making assumptions a party will engage in this behavior because they heard the person has a bipolar diagnosis.  Engaging in special preparations upon hearing this diagnosis means the mediator is coming in biased, even if that bias is meant to be helpful in reminding people this party is coming from a place of good faith.  It is bias because the mediator is assuming this particular person may have a deficiency and linking it to their perceived health condition.

D. Presuming Treatment is Required for Someone to Be Competent[viii]

• “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.”

It is inappropriate and invasive for a mediator to speculate about whether a party is following a treatment plan that they believe is appropriate.  It is also incorrect for a mediator to assume that someone must be following a certain treatment plan in order to be fit to participate in a mediation.  In fact, people with mental disorders are entitled to make their own choices about whether they want care and what kind to pursue.  Mediators should not reveal any bias they have toward a specific philosophy of treatment, let alone rely on it to screen out cases. 

While the ethics of this should be enough of an argument, any doubters might also serve well to research complementary and alternative medicine approaches to mental health as well as new treatment innovations.  For instance, while many used to believe the best and most effective way to treat schizophrenia was medication, the former director of the National Institute of Mental Health is one of many voices who have suggested that discontinuing medication can be helpful for the recovery of many people living with the disorder.[ix]  One recent study shows about a third of people who discontinue medication are able to maintain remission of their symptoms over a ten-year period.[x]  It is not any mediator’s place to audit this but these academic facts may help convince some practitioners to have less bias.

 E. Manipulating Parties with Personality Disorders[xi]

• “If you can, make them the hero—but only in private. Narcissists are preoccupied with power and truly believe they are special and unique. They live for attention and admiration. Want them to do something? Tell them how great they are at it and watch them perform. Better yet, praise their performance in front of others. Just keep it real, please.”

Personality disorders such as narcissistic personality disorder, the focus of the above article, have been highly stigmatized and often set apart from other mental disorders.[xii]  Though it is sadly somewhat common for mediators to casually dehumanize those living with these disabilities, it is inappropriate for us to develop biases based on these labels.  Moreover, it is discrimination to handle these parties differently based on the mediator’s perception that they may qualify for a personality disorder diagnosis such as narcissism.  This excerpt actually goes so far as to recommend mediators manipulate a person living with this disorder by using knowledge of their vulnerabilities due to their mental health condition.  

F. Avoiding Forming a Close Bond to People with Personality Disorders[xiii]

• “’To follow the HCP Theory, we first need to understand that high-conflict personalities and personality disorders usually go hand in hand. This is an important connection that most legal and workplace professionals know nothing about.’ (Eddy, 5 Types of People Who Can Ruin Your Life, 1st ed., Tarcher Perigee, 2018 p. 166). In order to excel at mediating the thorniest issues, every dispute resolution professional must be able to decode these patterns of behavior. Thus, when working in a dispute involving one or more high conflict personalities, a mediator must be equipped with specific tools. According to Eddy, there are four key steps that can be taken in this situation. The first step is managing the level of bonding. The mediator must adopt an arms-length bond due to HCP’s tendency to require excessive attention and time.”

This advice says to specifically assume a “high conflict personality” goes hand in hand with a personality disorder, and suggests mediators should avoid making a bond with that party as one normally would.  In other words, it specifically advises mediators to be partial to bonding more closely with parties who do not have personality disorders, and it recommends limiting their connection with those parties who may have them.  This is explicit bias.  If a mediator is concerned a party may monopolize their time, the impartial way to handle that is to have consistent practices of how much time and attention is allotted to each party – not to avoid bonding with people with personality disorders.

* * *

All of the above examples are inappropriate, but it can be hard for people to recognize that due to the ways our society often detaches from seeing people with mental health problems as human beings.  

This stigmatizing behavior, however inadvertently manifested, is wrong for anyone to engage in.  Mediators, however, have a higher burden to consistently treat all parties with the same level of dignity in order to ensure there is an impartial landscape for conflict resolution.  That is the service we promise, and it is our ethical obligation.

4. HOW TO HELP WITHOUT DISCRIMINATING

~ The Ideal of Accessibility

The simple answer is that we offer the same opportunities for help to everyone rather than rely on our own guesses of who may have a disability, or who may need help because of their disability. 

First and foremost, the ideal way to be accessible is to not require someone to ever disclose a disability in order to get their needs met.  Instead, we try to build our process so it is flexible enough to meet their needs already.  This way, all parties can feel like the process was intended for them to use it instead of thinking they need to call special attention to their disability in order to access it.

In a mediation, it may be as simple as saying:

“My job as your mediator is to make sure this process works for you.  A key value is self-determination which means the process is voluntary and you make all of the choices.  Is there anything you want or need to make this process more comfortable for you? I can be flexible.” 

This allows anyone to ask for adjustments like “please summarize often,” or “can you talk slower,” or “can you take breaks,” or “can we do a shorter session” without their ever having to say it is because of their disability and without the mediator ever engaging in biased, inappropriate guesswork.

There is a set of principles we can use to make our processes more accessible called Universal Design principles.[xiv]  They are used by architects, teachers, and anyone who wants to create a process that caters to all types of ability levels without requiring that some people ask for special help.  This is a gold standard for accessibility.  The key is making those flexibility options available to everyone and perceptible to everyone. 

If we are worried someone is not aware they could ask for a break or other adjustments, because the mediation process is hard to understand, then the best solution is for us to explain their choices to them.  Don’t single anyone out and suggest the things we believe might help based on our assumptions about their disability.  And don’t secretly make changes because we believe they have a mental health problem and we believe we know how to address it.  Instead, let all parties know all of their options so they can adjust the process in the manner they decide is best. 

We can tell them these options during intake and any other time we think is appropriate.  We just must be sure to make this a universal practice instead of only offering options to the folks we guess might need them. 

Being accessible will help prevent us from perpetrating inadvertent discrimination.  Moreover, we will also help other parties have a more empowering process even if they don’t have a disability.  That is one reason why it is called universal design – it helps everyone have better experiences, not just people with disabilities.[xv]

~ Making Accommodations When the Process Was Not Already Accessible 

It is also helpful to tell everyone, on intake, our policy for making reasonable accommodations.  Reasonable accommodations are process adjustments someone with a disability is legally entitled to ask for under the Americans with Disabilities Act.  If someone needs to ask for this kind of adjustment, asserting their legal right for process changes, it means the mediator has failed to have a generally accessible process and now they need to consider making a special change so the party is able to access their services. 

The important thing is that this accommodation process is directed by the person with the disability, not the mediator.  The process begins when the person with a disability discloses two pieces of information – that they have a health need AND that they want the mediation process or environment changed in some way.  They need not say the word “accommodation” or “disability” or even suggest an option of how to fix things.  But they do need to be the person who asks for something to be changed or expresses a limit that is bothering them, along with sharing their potential health condition.  If not them, then perhaps their representative – but not their mediator.

If all the party has done is mention a condition without asking for help, then it is a microaggression to assume they could need assistance and begin that extra inquiry without their asking.  This is because we are interpreting the mere existence of their disability as a sign they need help.  In those cases we should trust that we already offer a lot of accessibility options in our practice, to all parties, and that we made our accommodation practices clear on intake and other times when we normally share our policy for reasonable accommodations.   If we do not feel confident we have adequately done that, it is a sign for us to change our practices with everyone.  In other words, we should be telling these options clearly to everyone instead of waiting for someone’s mention of their disability to prompt us to do it. 

Of course if they ask for help of any kind while discussing their disability, at this point we are obligated to begin the process of fielding that accommodation request.

 ~ A Personal Example of How Asking If Someone Needs Help Can Be Disempowering

A helpful example may be my own.  I live openly with bipolar disorder, and people often make assumptions about me because of it.  If, in a mediation, I was accused by another party of being unable to function because I was “mentally ill” or “off my meds,” and then the mediator took that as a sign they needed to do something special to check if I needed extra help – I would feel they were biased by the other party’s use of my illness to diminish my competency in the mediator’s eyes.  The mediator’s inquiry would be a sign that things are not impartial – the other party gave them a perception I have a disability, and now the mediator is treating me differently based on their assumption I may need special help. 

They are doing this even though I never asked for any help and I already had the opportunity to ask for help on intake if I had needed it.

Alternatively if I was not being accused of being sick, but rather I had just mentioned my bipolar disorder to the mediator and they then used that disclosure alone as a reason to check if I need help, I would feel similarly disempowered.  Again, this disempowerment is because they assumed my disclosure was linked to a deficit even though I was not asking for any help, I was not communicating any present challenges, and I had already opted not to ask for an accommodation during intake or any other check-ins about process changes.

For them to introduce the idea I may not be able to function in their mediation, it makes me question how competent they will see me throughout the process.  It is disempowering. 

Generally speaking, I am able to get all of my needs met in mediation without ever having to link it to my mental illness because mediators emphasize self-determination throughout the process.  Therefore, they follow my wishes to adjust the mediation in many ways with just my asking for the change, without my ever needing to share my bipolar disorder diagnosis.  But say I found a mediator who said, philosophically, they would never caucus and yet I believed caucusing was a necessary buffer because of the symptoms from my mood disorder.  I could then ask the mediator for a change in that policy through making a reasonable accommodation request and we would discuss that adjustment.  Again, I would only have to do that if they were not flexible in the first place.

If the mediator were fully accessible I personally would never need to disclose my disability to get them to make that change for me.  This is part of the power of accessibility – the process can work for me without my ever having to out myself.

Remember, we all have a legal obligation to respond diligently to requests for help based on a disability but we also have a legal obligation not to treat people differently based on our own perception they have one.  Assuming someone has a deficit is discrimination, especially when it comes from a mediator tasked with setting an impartial stage for discussing an important life conflict.

5. CONCLUSION

Accessibility means embarking on a safer, more flexible process that allows all parties to make any changes they need without ever linking it to their disabilities. Mediators can get closer to that ideal if they regularly make efforts to put parties in the driver’s seat about any process changes that might benefit them.  That way the mediators do not need to worry their process is so rigid that a person with a disability will need extra, unsolicited help to make it work.

We don’t need to think so hard figuring out our best idea of how to handle someone’s disability because that is not our business.  Someone’s potential disability is not an invitation for us to invade their privacy, nor is it a distress signal begging for our help.  Any person may need extra help, and anyone can choose to ask us for that help.  If we say no, then people with disabilities are legally entitled to pursue a reasonable accommodation process to get that help despite our objection.  But those same people are also legally protected from discrimination (even the well-intentioned kind).  

People with disabilities have a right to potentially override our objections with a reasonable accommodation, and they also have the right to not get different services based on our preconceived notions about what they might need.

People regarded as having disabilities are legally protected from discrimination across many areas of life.  But we mediators are in the fairness business.  So, if anything, we should be extra careful not to ever prejudge parties based on their potential or disclosed disabilities. 

As a field, we should be working harder than anyone to be fair.

 

 ENDNOTES

[i] Williams, M. T. (2020). Microaggressions: Clarification, evidence, and impact. Perspectives on Psychological Science, 15(1), 3-26.

[ii] Keller, R. M., & Galgay, C. E. (2010). Microaggressive experiences of people with disabilities. Microaggressions and marginality: Manifestation, dynamics, and impact, 241-268.

[iii] Americans With Disabilities Act of 1990. Public Law 101-336. 108th Congress, 2nd session (July 26, 1990).

[iv] American Bar Association, American Arbitration Association, and Association for Conflict Resolution (2005).  The Model Standards of Conduct for Mediators.  Retrieved from http://mediate.com/articles/model_standards_of_conflict.cfm 

[v] Kichaven, Jeff (2000).  The Top 10 Reasons Why Psychiatric Disability Claims Are So Hard to Mediate.  Retrieved from http://mediate.com/articles/kichaven.cfm 

[vi] Cohen, Judith (2000).  Unique Issues in Mediating ADA Disputes.  Retrieved from http://mediate.com/articles/cohenunique.cfm 

[vii] Cohen, Judith (2000).  Making Mediation Sessions Accessible to People With Disabilities.  Retrieved from http://mediate.com/articles/cohen.cfm 

[viii] Coy, Patrick G. and Tim Hedeen (2000).  Disabilities And Mediation Readiness In Court-Referred Cases:Developing Screening Criteria And Service Networks. Retrieved from http://mediate.com/articles/cohed1.cfm 

[ix] Insel, Thomas (2013).  Antipsychotics: Taking the Long View.  Retrieved from https://www.nimh.nih.gov/about/directors/thomas-insel/blog/2013/antipsychotics-taking-the-long-view 

[x] Wils, R. S., Gotfredsen, D. R., Hjorthøj, C., Austin, S. F., Albert, N., Secher, R. G., … & Nordentoft, M. (2017). Antipsychotic medication and remission of psychotic symptoms 10 years after a first-episode psychosis. Schizophrenia research, 182, 42-48.

[xi] Puls, Darrell (2018).  Scorched Earth Clients: Mediating with High Conflict People.  Retrieved from http://mediate.com/articles/puls-scorched-earth.cfm 

[xii] Sheehan, L., Nieweglowski, K., & Corrigan, P. (2016). The stigma of personality disorders. Current Psychiatry Reports, 18(1), 11.

[xiii] Lee, Jared and Andressa Bortolin (2020).  ODR and Virtual Mediation: High Conflict People in Online Mediation.  Retrieved from http://mediate.com/articles/lee-ODR-conflict.cfm

[xiv] Steinfeld, E., & Maisel, J. (2012). Universal design: Creating inclusive environments. John Wiley & Sons.

[xv] Story, M. F. (2001). Principles of universal design. Universal design handbook.