When Dispute Resolvers Serve Parties with Mental Illness

When Dispute Resolvers Serve Parties with Mental Illness

Mediation and arbitration cases involving mental illness are more common than you might think. Here are five key scenarios when mental health issues can become part of the mediation.


  • The party is open with their mental illness
    Ex: a party mentions their diagnosis during intake or during the session


  • The mental illness is on record in the facts of the case 
    Ex: an employment discrimination case based on one party’s psychiatric disability


  • One party accuses another of having a mental illness
    Ex: divorce mediation where a wife says the husband is unfit to have custody of the children due to untreated, undocumented mental illness


  • The dispute resolver suspects that a party has a mental illness
    Ex: the arbitrator and party are clashing, or the party frequently interrupts, and the arbitrator wonders if this challenging behavior is due to mental illness


  • A party would like to trigger some kind of disability accommodation
    Ex: a party needs a shorter session or more breaks because of the stress of the session



1 out of 5 US adults has a diagnosable mental health problem each year.  If this rate sounds surprising, it’s because many people keep their mental illnesses secret due to the stigma in our society.


Parties with mental illness are even afraid to tell their mediator or arbitrator because they are scared it will hurt them in the session. That means that they are disconnected from the mediator, experiencing a power imbalance due to their internalized illness stigma, and unable to get help they might need for their disabilities.


They may be right to be afraid, because mediators have shown biases related to mental illness. Did you know that upon hearing a party has mental illness, many dispute resolvers are worried that party will exhibit challenging behaviors during the session? Or that mediation centers have often cited the presence of a mental illness as a reason to declare a party lacks capacity to even participate in the session?


This is because, in the absence of clearer strategies for managing challenging behaviors from parties, dispute resolvers have been forced to rely on gut feelings. Gut feelings are often biased by stereotypes, including those for mental illness. You may even inadvertently disempower a party by trying to help them, if they perceive it as paternalistic.


Training can help ADR professionals empower parties with mental health needs.  Learn more at mhmediate.com/mi – our next offering is in New York City on Saturday, September 24th.

It includes Sensitivity Training, Accessibility Training, and Challenging Behavior Planning.