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Mental illness a unique challenge for mediation process

Mediators need to become more aware of mental health issues so they can respond appropriately — and effectively help parties settle their disputes, says Toronto lawyer and mediator Eric Gossin.

“This is a topic that I don’t think our colleagues talk about very much. But my experience has been that we’re meeting more and more people who may have some mental health challenges, and it’s a terrible stigma. It is not something that we or they are often comfortable talking about or addressing,” says Gossin, managing partner with Stancer, Gossin, Rose LLP.

“I occasionally have my suspicions about a party in a mediation, depending on how the person is behaving. When it surfaces, I try to be sensitive and design my process around that possibility.”

Mediators face unique challenges when dealing with someone who may be suffering from some form of mental illness, whether or not the mediator has been informed of the situation by counsel or by one of the parties, he tells

“This leads to interesting questions for a mediator: is this information relevant? How does it impact your ability to work toward a settlement with someone who’s has these kinds of challenges? So the mediator needs a skill set to understand how you work with people in these circumstances,” Gossin says.

If counsel doesn’t disclose information about a mental illness, doesn’t realize it, or there is no counsel, it can lead to another problem for mediators, he adds. “Imagine yourself looking at this person and you’re thinking, 'Something’s the matter.'”

Gossin points to a dispute he was mediating where one party confided to him that the other person suffered from a severe bipolar disorder. “You’re armed with this information, but you were asked not to disclose that you know. Do you as a mediator have to be more cautious in terms of how you deal with this person?”

Gossin says, “There is an expectation that if you’re told something in private, you will not share it without permission. But it doesn’t mean that it won’t affect the mediator’s behaviour.”

If information about someone's mental state is not available, but the mediator has suspicions, Gossin says it’s debatable whether the person in question should be asked.

“My sense is if the information is not being volunteered, (a) I’m not qualified to diagnose, (b) it would only be a suspicion and (c) they may consider it a breach of their privacy. And there is always a question of relevance. I think what you have to do is assess the person’s ability to make a decision,” he says.

“For example, if the person has attention-deficit hyperactivity disorder (ADHD), then I think the mediator has to help the party focus. Whether or not it’s true that they have ADHD, if they’re showing symptoms, then you should react accordingly.”

Gossin says he recently mediated a case in which he suspected one of the parties involved in an accident suffered a brain trauma of some kind, a view that was backed somewhat by the medical report.

“I was worried about this person really understanding things. So with the help of counsel, we phrased and rephrased and organized things so that this person had the appropriate comfort level.”

When the person with an illness volunteers the information, he says, “I thank them and ask how I can help ensure this is a good process for them.”

Gossin says when he was being trained as a mediator in the mid-1990s, the issue of dealing with mental illness in the mediation process wasn’t even a topic discussed in the program.

“I think people are now starting to understand that the mental and emotional component of the mediation process should be really carefully considered. When you’re trying to get down to the basics about what’s in these people’s best interests for settlement, if you have a case in which you know the person is suffering these challenges, you have a new interest to take into account,” he says.

“What’s their best alternative to a negotiated agreement? Is it really court proceedings? In which case, this makes mediation more appealing. So I think it adds a whole dimension of benefit for a person who’s suffering from a mental illness and is trying to avoid a long, drawn-out, expensive, stress-filled lawsuit.”


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