Mediation and mental health

Written by Samantha de Coning

As mediators we meet people when they are stuck in challenging situations which stretch their ability to be patient, reasonable and empathetic. Our role as mediators is to design processes which facilitate their capacity to participate in mediation and in this way to provide the opportunity for them to move forward.

How we do this will depend on multiple factors and the relationship we are able to build with the parties. It will also depend on the ability and willingness of parties to participate in the mediation process. One aspect which impacts on this is mental health.

Issues of mental capacity can be transitory and linked to the stress of the dispute and breakdown of relationships. But these can also be long term illnesses that one or both parties are coping with and attempting to manage. The impacts of COVID-19 have caused significant stress for parties. Worries about the future, financial security and the health and wellbeing of loved ones put additional stress on people already under strain.  How do we design safe processes for mediation and what are the factors we should be considering?

I truly believe in the power of mediation and that as a conflict resolution process it is an empowering and effective way for people to find their own solution to their problem. It is precisely the self-determining nature of mediation which gives it its magic and uniqueness. But mediation creates responsibility for both the mediator and the parties. The responsibility of the parties is to participate in good faith and to come to the mediation with a willingness to resolve the issue. As the mediator, our responsibility is to work with the parties and design safe processes which meet their specific needs and promote their ability to understand and meet their responsibilities to the mediation process.

It is perhaps then our fear over our ability as mediators to design and manage safe processes where one or both parties are struggling with their mental health which may cause us to determine that the dispute is not suitable to progress to mediation. We should take a step back and ask ourselves: are our worries about our inability to manage the process or that mediation may make things worse for the parties good enough reasons to prevent parties from participating? Put another way, should we be considering whether the process we are designing is suitable to meet the needs of the parties rather than looking at it from the perspective of whether the parties are suitable for the process. By changing our perspective, we can really focus on what the parties need and how we can keep everyone safe. This way, we fulfil our responsibility of facilitating inclusive processes rather than making a determination which will exclude a party from participating and which is based on our assumption of what the process should be and who are suitable participants.

How could we approach cases where mental health issues require additional understanding and support?

Talk about it

In order to understand how to support a party with mental health issues, we need to understand what this means to the party. Having these conversations can be challenging and again we need to be mindful of how and when this conversation takes place.  By asking and not telling, or worse assuming, we will help to create an environment which supports the self-determining ability of the party and assists you as the mediator to create meaningful support for the party.

Develop the capacity to mediate

Part of designing a suitable process for the parties is ensuring that they are provided with resources so that they are ready to participate in mediation. We often make use of Preparation for Mediation (PFM) to help parties come to mediation better able to have challenging conversations and to learn new skills and strategies which they can use in the joint session. These include the ability to shift unhelpful patterns of communication, behaviour and thought so that they can communicate what is truly important to them and in this way create a feeling of empowerment and safety in the mediation.

Mediators can use additional support to promote the capacity of parties to participate in mediation which can include other mental health professionals and support people. Further competencies which can be developed include finding ways for a party to communicate that they need help or that they don’t understand as well as growing their understanding of the impact of decisions made.

Again, in this way the mediation process seeks to empower parties by increasing their capacity to cope with mediation rather than further alienate or disenfranchise participants by deciding for them that they are not able to participate in mediation. By focusing on ‘how we can’ rather than on ‘why we can’t’ mediators can promote this self-determining process.

Create a team

A further aspect of designing the mediation process is ensuring that the right people attend the mediation. This can include additional parties and support people. Designing processes where parties with mental health issues are supported through the process is often essential for good outcomes. It is also important to understand the role of the support person as this could range from emotional support to being the speaker or translator for the party. By having the right people there, the party will feel safe and empowered and better able to participate in the process in a positive way.

Flexible and supportive process

Mediation should always provide for flexibility and what this will look like in practice will be determined by the needs of the parties. Some may need short sessions on different days, others may need to have frequent breaks. Understanding the specifics for your parties leads to supportive and collaborative processes which enhance capacity and participation. Flexible processes also provide for the ‘What if’ moments and in this way, we can plan for difficulties or the need for last minute changes which may be needed by the party.

The challenge for us as mediators is to reflect on our ability to be truly flexible, inclusive and collaborative in our approach. We need to trust the process rather than jump to determinations of unsuitability. We need to be brave (like our parties who agree to participate in the process) and challenge ourselves to find ways to create safe spaces for resolution. This doesn’t mean having a “hope for the best approach”, but rather a clear plan with well thought out contingencies.  Be mindful of the challenges the parties are facing, have honest conversations about what they need and focus on providing a positive environment where they have the opportunity to work with the other party to find a resolution. In this way we will fulfil our responsibilities as mediators and support our parties to meet theirs.  

Case Study

I recently had the opportunity to practice some of my thoughts above in a Family Dispute Resolution mediation.

Background

The parents emigrated to New Zealand together almost twenty years ago. Their four children were born here, and the eldest was now sixteen years old. Dad was the primary income earner and his work had always been a priority. Mum had taken on the role of primary caregiver for the children. In the last two years, Dad lost his job and suffered a major mental health breakdown and depression as a result. The relationship between the parents broke down and they separated ten months ago. While Dad remained in the house, he isolated himself completely from the children and did not communicate with them or Mum. This caused his relationship with the children to fail as well. Dad moved out of the house three weeks before the mediation and had been unable to discuss this with the children or Mum before doing so.

Getting Ready

I started by meeting with Dad to talk about what was happening for him and what he needed. He was staying with a friend who was his main support. The friend would act as his interpreter during the mediation (Dad spoke limited English) but was also key in sharing information with me on what Dad was coping with. We discussed the professional and medical help Dad was getting as well as what I could do to help at mediation

Dad wanted to participate but recognised that he would need support to do so effectively and to maintain his emotional strength during the process. We discussed the existing professional support he was receiving, PFM and how his support person could assist him on the day. I also got permission to discuss some of this with Mum so that everyone was on board with the flexible process that this mediation would require.

Mediation

I began by thanking the parents and their chosen support people for attending mediation and acknowledging the recent challenges the family was experiencing. I invited the parents to share their hopes for the mediation. The parents spoke about their children and their needs. They quickly came to an agreement regarding Dad’s contact with the children (every Sunday during the day) and specifics were added to this.

While the parents were very focused on reaching an agreement, they were hesitant about exploring the ‘what ifs’ or disagreeing with each other in front of the me and the support people that they had brought with them to mediation.

So, after a break I changed direction and asked the parents how they intended to communicate the agreement to the children. Specifically, who was going to tell them and what were they going to say. Mum felt that the children should be told that they were spending the day with Dad every Sunday. Dad felt that the children should be given a choice as to whether they wanted to see him or not. Through these discussions, the parents were able to discuss why they felt their respective views were valid.

For Dad, it was important that the children wanted to see him. Mum felt the children, especially the sixteen-year-old, would choose not to see him if given a choice and that this would be bad for both the children and Dad. This honest conversation opened the door and the parents began to address other issues and concerns that they had.

Mum shared her concerns about Dad’s ability to cope with the children for a long period and how this could impact on the children. She wanted Dad to be involved in the children’s lives and to really get to know them but wanted it to be safe for everyone. The parents then discussed Dad’s mental health and the treatment he was receiving. They made plans for what they would do if Dad was unable to care for the children because he was having a bad day, or if he needed to bring them home earlier.

Mum and Dad were then able to work together to come up with a way for Dad to re-establish relationships with the children and how the children could be encouraged to participate in the Sunday activities. They agreed to build slowly, starting with phone calls and progressing to visiting the children at Mum’s home when everyone felt ready for this. They also discussed safety and how they both would communicate with each other going forward.  Dad agreed to be more honest about his health and to let Mum know when he was unable to contact the children. They also agreed that he would meet with the children at Mum’s house with either Mum or another adult family member present. The parents also decided to keep their children’s mobile phones topped-up so the kids could initiate contact with Mum or Dad at any time.

The mediation process provided a supportive process where the parties were able to design a child-centred agreement which would provide support for the Dad and the children going forward. Importantly, the parties were able to explore the potential impact Dad’s depression could have on the care arrangements and come up with realistic, practical and safe alternatives.

Talking with Dad about his mental health and his specific needs for the mediation, having a plan in place to promote his ability to participate in a meaningful way, ensuring that the right people were involved  and designing a process that would work for both the parties was key to the mediation being a positive and empowering experience. Mental health issues should not be seen as an impediment to mediation, but rather as a specific challenge which we as mediators manage. In this way all parties can participate in a process which enables them to express their views, exchange ideas and define their own resolution.

About the author

Samantha de Coning is Head of Practice and a Senior Resolution Practitioner with mediator and adjudicator expertise. Having joined Fair Way in 2016, she has experience working with a vast range of disputes including building and construction, commercial and private, education, care of children and relationship property matters.  Samantha is a Fellow of the Arbitrators and Mediators Institute of New Zealand (FAMINZ) and is an accredited Family Dispute Resolution (FDR) provider.