REPRINTED WITH PERMISSION. This article was originally published in Alternatives, Volume 21, Number 6 (June 2003).
This article addresses party capacity in a mediation setting as a broad issue, centered on the ability to exercise self-determination. It examines the preplanning process and how the convener can assess, with disputants, their readiness or ability to participate in a mediation. This process emphasizes self-determination and empowerment that allow each party to participate in the planning of his or her own mediation that might include process adaptations for a fully accessible mediation.
Mediation can be an excellent alternative for disputants who want to have a part in the outcome of their particular conflict. The process itself is dynamic, requiring a skilled mediator and the willingness of the parties to participate in an open dialogue.
While articles on mediator skills abound, literature is limited on the capabilities and skills of the mediation parties.
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.
DEFINING PARTY CAPACITY
The term “party capacity” has generally been linked to the disability arena. The guidelines put forth by the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law–see ADA Mediation Guidelines (February 2000)(available at www.cardozojcr.edu)–define party capacity as the ability of the parties “… to understand the process and the options under discussion and to give voluntary and informed consent to any agreement reached” (p. 7).
The guidelines do not presuppose a determination by indication of a medical or mental diagnosis. Clearly, it is not the mediator’s role to determine a participant’s mental capacity or impairment, but the participant’s ability to engage fully in a mediation process. Researchers Patrick G. Coy and Tim Hedeen describe party capacity in terms of “mediation readiness.” “Disabilities and Mediation Readiness in Court-Referred Cases: Developing Screening Criteria and Service Networks,” XX. They determine a participant’s mediation readiness based on the disputant’s psycho-social skill level or mental health status and the party’s ability to “adequately function in a highly-charged facilitated negotiation process.”
In a broader sense, editor Douglas H. Yarn, in “Dictionary of Conflict Resolution” 346 (Jossey-Bass 1999), defines party capability as the “individual’s ability and willingness to participate in a particular dispute resolution process.” The definition also alludes to a party’s disposition and the ability to use the process and the resources to participate in mediation.
This author focuses on the broader definition of party capacity as it relates not just to psychiatric or cognitive disabilities in a disability-related mediation, but also to the broader understanding of a disputant’s capability. The capability of a disputant to fully engage in a dynamic, facilitated and often emotionally charged process, no matter what the mediation context, is critical to the process’s effectiveness. This examination should include the determination of any accommodations or process adaptations that participants might need to enhance their mediation capabilities.
Finally, the concept of party capacity is intrinsically linked to the ethical principle of self-determination and the core value of empowerment. According to the Model Standards of Practice for Mediators (August 1998)(available at www.mediate.com/articles/spidrstds.cfm), which were developed by the American Bar Association, the American Arbitration Association, and the predecessor to the Association for Conflict Resolution, the principle of self-determination “requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement” (p. 1).
Therefore, mediators who observe the principle of self-determination advocate and recognize the parties’ rights and needs to make their own decisions that best suit their situation. Empowerment refers to the process of “enabling” disputants to gain strength and recognize their own value in order to enhance their participation in the process. See Yarn, above. These principles are applied below.
IDENTIFYING RED FLAGS
In convening, the skilled mediator might encounter red flags that indicate he or she needs to work more closely with the participant to fully understand the party’s limitations. Mediators with a mental health background generally have the education and training to examine closer the limits that might involve distorted thinking processes such as a party’s inability to think abstractly or reflectively, a tendency toward black and white thinking, or shifting the focus abruptly from one thought to the next. In detecting these types of thinking patterns, mediators can use questioning skills to determine the extent of the participant’s limitation to a mediation process.
Another red flag or warning sign is a participant’s emotional lability, which means the “tendency to change moods rapidly or frequently.” Robert L. Barker, “The Social Work Dictionary” 152 (NASW Press 4th ed. 1999). A range of emotions can be a sign of immaturity or a symptom of a mood disorder. Sometimes the extreme of such moods, especially hostile anger, is an indication that the disputant might not be able to participate in a productive and open dialogue with the other side.
The participant’s emotional capacity can have a big effect on the communication process. For that matter, the party’s ability to communicate what he or she is thinking or how he or she is feeling is key to open dialogue. If an individual shuts down easily because he or she is overwhelmed by the stress or interplay in the discussion, that is an indicator that there might be a limitation that needs to be addressed by a process adaptation. A mediator with a mental health background brings a certain skill set that emphasizes empathetic listening, valuable interviewing and questioning techniques, and the knowledge and skill in detecting patterns in thought processes, behavioral cues, and emotional lability.
A CASE EXAMPLE
Joe, a young, retired police officer requested a mediation for a family dispute. During the convening process, there were indications that Joe was not retaining information discussed about the mediation process. He often would ask the same types of questions or make comments that seemed tangential to the current conversation. At times, his mood seemed inappropriate to the discussion at hand.
After some time had passed, Joe seemed a little agitated and frustrated. Something seemed amiss in the conversation that led the conveners to say, “I get the impression that you are having trouble understanding what we just discussed regarding the mediation process and the mediator’s role. Help me to understand what your needs are and how I can better communicate this to you.”
This statement opened the conversation, giving Joe an opportunity to reveal that he had to retire early due to a gunshot wound to the head. He experienced a traumatic brain injury that left him with some cognitive limitations. He revealed how this had affected his life, family, and career.
This revelation was an empowering process, because it allowed Joe to show his vulnerability and gain further trust in the mediator and the ADR process. It also was an opportunity for the convener not to jump to conclusions about Joe’s limitations, but to encourage Joe to exercise self-determination. Joe knew what his limitations were and he was able to articulate what he could or could not do. Together, Joe and the convener explored process adaptations that would assist in Joe’s ability to fully participate.
These adaptations included having shorter mediated sessions to address the retention issue. They also explored using visual tools, including a flip chart, to summarize key conversation points as a review of what had been discussed previously. Given that the mediated sessions would be no longer than 90 minutes, a written summary of key issues would be outlined to assist in preparation of the next session.
Joe also would ask for any needed breaks as a way to slow down the process and assist him in reflecting and thinking about issues. The convener and Joe also explored whether Joe might need a support person, but Joe felt there was no need at this time. Although Joe declined to have a support person present in the mediation, he was open to having the convener coach him about how he could identify his needs and express them in the future mediation session.
This preplanning stage was critical in establishing a solid foundation for an effective mediation dialogue. Through the fundamental principle of self-determination, Joe was able to contribute and make decisions about the mediation process and determine how he was going to participate. The preplanning process allowed Joe to feel empowered as an individual with value and the capacity to direct his own future outcome.
EXAMINE AND CONSIDER
Mediators must closely examine their own need to direct the process in a particular way. Further, mediators need to be very careful not to make assumptions about a party’s capacity, but to explore with parties their abilities and limitations. Then, in collaboration with the party, decide the best and appropriate course of action before a mediation session.
If the best course is a decision not to proceed to mediation, then knowing other alternatives or community resources that the party can further explore is essential to ending the convening process.
If the decision is to move forward with a mediation, then the preplanning stage can be a perfect opportunity to assist parties to better understand their interests, needs, and feelings and how they may want to communicate with the other party. Questioning and coaching techniques are excellent skills in working with a party to examine and guide them through the process. The challenge is not to cross the line by providing counseling or legal advice, but to know when and how to refer a party if these resources are needed in helping the party become a more effective participant.
Copyright © 2003 by the CPR Institute for Dispute Resolution, 366 Madison Avenue, New York, NY 10017-3122. The CPR Institute for Dispute Resolution is a nonprofit initiative of 500 general counsel of major corporations, leading law firms and prominent legal academics in support of private alternatives to the high costs of litigation. Organized in 1979, CPR develops new methods to resolve business and public disputes by alternative dispute resolution (ADR).
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