Competence as an element of “mediation readiness”

Competence as an Element of “Mediation Readiness” Connie J. A. Beck Lynda E. Frost

This article introduces a specific standard to the mediation community with the idea of sparking debate that would lead to a commonly accepted standard for competence to participate in mediation for divorce. It delineates the broad contours of an assessment process using the proposed standard and examines practical implications and next steps for mediators related to the establishment of a common standard. It then describes how the proposed standard could be incorporated in mediation trainings, model rules, and state statutes and regulations, leading to more uniform and equitable decisions and increasing the procedural fairness of divorce mediations within and across jurisdictions.

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ediators regularly make decisions about which clients are capable of proceeding in mediation. In making those decisions, they rely on their gut instincts, supplemented by rather vague guidance from model standards and conflicting views from mediation scholarship. The significance of the mediators’ decisions is enormous in divorce mediations, where the outcome of the legal proceedings will have a long-term impact on the parties and any children. Incorrectly assuming that a party lacks capacity denies both parties the opportunity to fashion their own resolution through mediation. Yet proceeding with mediation when a party lacks fundamental capacities is patently unfair to that party, who is thereby denied the protections of a judicial process designed (in theory, if not always in practice) to protect vulnerable parties and ensure a just outcome. These risks make unacceptable the broad discretion left to mediators and argue for a common standard for courts, mediators, and intake personnel to use in

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determining whether a party to a divorce mediation has the functional capacities necessary to participate in an alternative dispute resolution process rather than the traditional judicial proceeding.

To move toward a common standard, this article first reviews mediation scholarship and professional standards related to mediation readiness as well as criteria for excluding parties from mediation, differentiating between optimal and minimally necessary functional levels of competence.

This article then introduces a specific standard, set forth previously in an article reviewing historical, legal, and ethical aspects of competence to participate in mediation (Beck and Frost, 2006), to the mediation community with the idea of sparking debate that would lead to a commonly accepted standard for competence to participate in mediation. It parses each phrase in the proposed standard, clarifying linguistic nuances and applying the standard to familiar mediation situations. Next, it delineates the broad contours of an assessment process using the proposed standard. Finally, the article examines practical implications and next steps for mediators related to the establishment of a common standard. It describes how the proposed standard could be incorporated in mediation trainings, model rules, and even state statutes and regulations, leading to more uniform and equitable decisions and increasing the procedural fairness of divorce mediations within and across jurisdictions. It suggests that a shared standard could serve as the basis for the formulation of a screening instrument or evaluative tool gauging potential participants’ mediation readiness so that mediators could identify functional impairments and recommend means, such as an educational seminar or counseling, to raise party competence to at least the minimal level necessary to participate in the process. Were such evaluations to happen, court-ordered divorce mediation would move far toward carrying the same uniformity and procedural fairness that judicial proceedings were designed to protect.

Mediation Scholarship and Professional Standards Experienced mediators recognize that divorce mediation is not suitable for all clients, yet they often find determining which clients are capable of participating in mediation a difficult task. Some mediation scholars argue for a mandatory screening of all potential clients for issues related to domestic abuse and the establishment of strict criteria for allowing clients to move forward (Gerencser, 1995; Girdner, 1990; Maxwell, 1999; Neilson and Guravich, 1999). (In this article, we use the term domestic abuse and define CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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it broadly, following Maiuro (2001), to include “all behaviors that exert physical force to injure, control or abuse an intimate or family member, forced or coerced sexual activity, destruction of property, acts which threaten or abuse family pets, as well as nonphysical acts that threaten, terrorize, personally denigrate, or restrict freedom,” pp. ix–x.) Others argue that there should be few limits on access to mediation (Coy and Hedeen, 1998), with the focus on improving capacity so all can participate, as opposed to screening out certain clients (Crawford, Dabney, Filner, and Maida, 2003). Within this debate are mediators who have identified criteria or considerations relating to a client’s “readiness to mediate” (Blades, 1984; Waldron and others, 1984) or “mediation readiness” (Coy and Hedeen, 1998), loosely defined as when or if clients are able to move forward and negotiate the terms of their divorce.

Not surprisingly, professional associations have also joined this debate.

Various ethical standards address client capacity or willingness to mediate, with some providing a partial list of issues to consider (Model Standards of Practice, 2000; American Arbitration Association, 2001). The result of this patchwork of ideas and standards is an uncoordinated set of recommendations unlikely to provide equitable evaluations of potential clients’ mediation readiness. Although some jurisdictions have strict screening procedures primarily focused on a specific issue like domestic abuse (Oregon Revised Statutes, 2006), others provide little guidance (Arizona Rules of Family Law Procedure, 2006). What is missing is a common standard—a clear statement of the minimum requirements necessary for parties to proceed in mediation.

Mediation readiness is of particular concern in the modern context, in which parties increasingly are ordered to mediate. As originally conceived, divorce mediation was a strictly voluntary process (Hedeen, 2005) wherein disputants came together to air their concerns in front of a neutral third party (the mediator) in a forum less adversarial than a courtroom (Beck and Sales, 2001). The theory was that, through this airing of concerns, mediators could assist parties in identifying the relevant issues and negotiating a solution that would reflect the needs of their unique circumstances.

Because the parties voluntarily entered the mediation process and worked toward a resolution, the clients would then be more willing to adhere to the settlement agreement (Beck and Sales, 2001). However, it became apparent early on that, if given a choice, many clients opted not to participate voluntarily in divorce mediation (Katz, 1993; Pearson, Thoennes, and Vanderkooi, 1982). As a consequence, state statutes or local court rules CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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were amended to require clients to attend, transforming mediation from an option to an obligation.

Feminist scholars were the first to raise concerns about implications of such mandated client participation with no criteria for exceptions. In particular, they questioned the fairness of requiring domestic abuse victims to negotiate long-term legal decisions with their abusers without the aid of counsel or a support person in the mediation sessions (Cohen, 1983; Crouch, 1982; Lefcourt, 1984; Treuthart, 1984; Woods, 1985). Since the early 1980s, a major focus of feminist mediation scholars has been to develop a set of exclusion criteria designed to protect the rights of victims of domestic abuse (Barsky, 1995; Brown, 1997; Ellis and Struckless, 2006; Girdner, 1990; Neilson and Guravich, 1999; Tolman, 1984).

In addition, other scholars developed criteria directly related to divorce mediation but inclusive of circumstances beyond domestic abuse. Over the years, a variable that has received much attention is the existence of power imbalances between the parties (Barsky, 1995; Bryan, 1992; Emery, 1994; Ellis, 1990; Fischer, Vidmar, and Ellis, 1993; Forester and Stitzel, 1989; Grillo, 1991; Kelly, 1995; Kelly, Zlatchin, and Shawn, 1985; Landau, 1995; Marlow and Sauber, 1990; Singer, 1992). Several authors have described attributes that, if possessed by spouses in unequal amounts, would constitute a power imbalance (Haynes, 1988; Kelly, 1995; Landau, 1995; Mnookin, 1984). Situations that have been categorized generally as “power imbalances” include unequal negotiating ability (Blades, 1984), differences in cognitive style and capabilities (Kelly, 1995), inability to identify personal needs (Gold, 1997), differences in life circumstances (Irving and Benjamin, 2002), and lack of information (Davis and Salem, 1984). A power imbalance may also be created by differences in intellectual or verbal ability, culture or language, age, socioeconomic status, personality, availability of support systems, and emotional response to marriage breakdown (Landau, 1995). Some sets of criteria relate specifically to mediation in other legal arenas, such as community-based mediations (Coy and Hedeen, 1998) and mediations under the Americans with Disabilities Act (Johnson, 2004; Maida, 1997), while others apply to mediation broadly defined (Clement and Schwebel, 1997; Davis and Salem, 1984). There is, however, a question as to whether mediators can “read” power imbalances as easily as many would like to believe (Beck and Sales, 2001; Morrill and Facciola, 1992; Singer, 1992) or whether the concept is defined clearly enough to enable mediators to consistently agree on what it is (Beck and Sales, 2001) and when an imbalance should preclude mediation.

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Distinguishing between two degrees of mediation readiness may help mediators to gauge levels of client preparedness. One degree, optimal mediation readiness resulting in a fair process and outcome, would require clients to have adequate knowledge of the relevant legal and financial aspects of their situation. In an ideal situation, each client would be sufficiently empowered to negate any negative impact of preexisting power imbalances. Mediation centers can move toward this optimal readiness through their policies and procedures and through educational sessions for potential clients. Basic facts about custody and property division laws in the state or types of assets and debts that could be considered as part of the divorce settlement are vital pieces of information necessary for optimal mediation readiness. Nonetheless, although this type of knowledge may be essential to a fair mediation process, it is distinct from the basic capacities necessary for competence to participate in the mediation.

The second degree of mediation readiness, minimal mediation readiness or competence to participate in mediation, establishes a threshold below which a mediation should not proceed. It requires that the client have the ability to learn and understand basic information relevant to the mediation. Such a capacity should be a legal requirement in order for a divorce mediation to proceed. Only by requiring a threshold level of capability and comprehension can we ensure that mediation participants are not divested of their legal rights outside of a judicial setting designed to protect the interests of the most impaired individuals.

Distinguishing between optimal and minimal mediation readiness is difficult without a clear, detailed standard. The next section of this article lays out a common standard designed to ensure minimal mediation readiness for mediation participants.

Proposed Common Standard We argue elsewhere that what is missing in the discussion of criteria is a unifying legal standard by which a client can be judged minimally competent or ready to mediate based on a functional assessment of the client’s capabilities in the particular context (Beck and Frost, 2006). In this prior work, we laid the legal groundwork and developed a model standard by reviewing the conceptions of competence in other areas of law and applying them to divorce mediation. We proposed the following legal standard, which mediators of family law cases can use uniformly to determine the minimum requirements for clients in the mediation process: CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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A person is incompetent to participate in mediation if he or she cannot meet the demands of a specific mediation situation because of functional impairments that severely limit 1. A rational and factual understanding of the situation; 2. An ability to consider options, appreciate the impact of decisions, and make decisions consistent with his or her own priorities; or 3. An ability to conform his or her behavior to the ground rules of mediation [p. 25].

To facilitate a shared understanding of competence to participate in mediation, it is essential to elaborate on the important elements of the model standard.

The First Clause

Factors both external and internal to the parties affect their ability to participate. The first clause focuses on environmental factors, and states, “A person is incompetent to participate in mediation if he or she cannot meet the demands of a specific mediation situation.”

Mediation sessions occur within a context, and this clause is intended to anchor the determination of client competence in the mediation context and the facts of each specific case. The rationale for this contextual approach is based on widely differing levels of complexity from case to case. Although the facts and disputed issues of some cases are fairly straightforward, others can be quite complicated. In divorce mediation with a couple who has only been married a short period, with no children and no debt or assets, the issues are fairly simple (Sales, Beck, and Haan, 1993). The complexity increases as the couple remains together longer and possibly has children, accumulates debt, purchases a home, acquires pensions, and inherits assets.

Another example of a significant environmental factor in the mediation context is whether a client is proceeding with the assistance of an attorney.

This factor should raise the most concern for mediators when one party has an attorney and the other does not. Unless clients have at least some legal training or experience with the legal system, proceeding without counsel is a difficult and frustrating process (Sales, Beck, and Haan, 1993). Lay people presented with complex procedures, an unfamiliar language, and no knowledge of legal requirements or entitlements can create enormous difficulties for the court system and for mediators (not to mention for themselves). Depending on the format and rules used by the mediator, the CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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mediation procedures may seem unfair when one party is proceeding without counsel. But the question related to competence is merely whether the pro se—or self-representation—context leads to a severe functional impairment for the client. Any specific pro se client could have the capacity to represent him or herself adequately opposite an attorney-represented spouse.

It is important to note that a person can be competent for one context or set of facts related to a specific case and not competent for another. For example, a person with limited intellectual capability due to a recent head injury may be competent to mediate a simple divorce case with no children, no assets, and a short-term marriage, but this person may not competent if the case is complicated by a child with a disability, a family business, and many assets to divide. Under the common standard, the mediator must consider the various elements that make up the context of a case in order to gauge the minimal functional requirements of that context (Beck and Frost, 2006).

The Second Clause

The next clause of the standard focuses on the impact of various factors on a party’s functioning and requires that the determination that a party is not competent be “because of functional impairments.”

Although mediators gauging competence may look for causes of impairment and assign labels, the determination is based on the client’s level of functional impairment, regardless of cause. Some causes of impairment are external to the client and were addressed above as part of the mediation context or case-related factors. In the example discussed, proceeding without an attorney would be an environmental factor related to the mediation context—a client either has an attorney or not. The determination of competence would not rest on the existence of that factor, but instead would focus on the impact it has on the client’s level of functioning.

Another external cause of impairment might be domestic abuse in the relationship of the mediating parties (Barsky, 1995; Brown, 1997; Emery, 1994; Gold, 1997; Johnson, 2004; Juhler, 1999; Kelly, 1995; Landau, 1995). A number of scholars strongly advocate that in order to proceed, there must be no history of domestic abuse within the relationship (Gold, 1997; Grillo, 1991; Johnson, Saccuzzo, and Koen, 2005). However, domestic abuse is not a set of homogenous actions with homogeneous responses in all victims. Although we would never argue that all victims of domestic abuse are competent to mediate, we would conversely never argue that all victims are not competent to mediate. A relationship with CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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domestic abuse characterized by a “culture of battering” (Fischer, Vidmar, and Ellis, 1993) is qualitatively different than a relationship wherein a couple may have pushed and shoved each other early in the marriage (Girdner, 1990). The relevant determination is whether the abuse (or any other cause) has resulted in a party lacking the minimal functional capacities to participate in mediation.

Some causes of impairment are internal to the client. Much of the prior literature has identified labels or conditions apart from the mediation context to be determined by the mediator that could potentially cause functional impairments: mental illness (Brown, 1997; Clement and Schwebel, 1997; Emery, 1994), mental retardation (Emery, 1994; Maida, 1997), substance abuse (Emery, 1994; Gold, 1997), personality traits (Gold, 1997; Kelly, 1995), and emotional crisis (Blades, 1984; Saposnek, 2006; Waldron and others, 1984). Some of these conditions, such as mental retardation, can be assessed fairly accurately. However, other conditions, such as emotional crisis, tend to exist in mild forms in most divorces and can be very difficult to quantify.

Fortunately, to assess competence to participate in mediation, it is not necessary to quantify those conditions; it is essential only to gauge the client’s level of impaired functioning from whatever cause. For example, one status or diagnostic label is mental illness. One party may have an untreated mental illness, and the functional impairment caused by such an illness may be too great for the party to adequately represent his or her own interests in mediation. On the other hand, a party may have a mental illness that is well controlled by medication and individual therapy (Barsky, 1996; Clement and Schwebel, 1997). In this case, the status of having a mental illness may not create a functional impairment that negates the client’s ability to negotiate.

A focus on functional impairment streamlines the considerable debate about what mediators should do when they encounter power imbalances (Beck and Sales, 2001). For our purposes here, it is not the power imbalance per se that is the defining criterion, but whether the imbalance creates a severe functional impairment in one of the parties. The harsh reality is that there are power imbalances between people in all situations. Some people have superior intellectual or verbal abilities, some have superior negotiation skills. The crucial question for competence to participate in mediation is whether a power imbalance affects a client so much that it creates a functional impairment in the client’s ability to negotiate.

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Level of Functional Impairment

How much functional impairment is too much? This question brings us to the next important piece of our model standard. The functional impairments must be ones “that severely limit.”

The functional impairments must be such that the client’s abilities are severely compromised. This model standard is not designed to ensure every party is optimally able to represent his or her own interests, but that the parties are minimally able to do so. Someone who meets the threshold of minimal competence may still face inequities or unfairness in the mediation process; these inequities should be addressed through better procedures.

At present, mediation scholarship and practice abound, with an assortment of criteria and considerations of mediation readiness and little consensus on the critical components. Many of the lists fail to differentiate between criteria that are optimal for clients to reap all the benefits mediation has to offer versus criteria that are minimally required for a client to proceed with mediation. For example, early work suggested that mediators should consider, among other things, whether both parties want the divorce, are able to put aside most of their anger and frustration, and are flexible (Blades, 1984). Another early list of issues to consider included the level of personality development of the client and the stage of emotional processing the parties have reached concerning the divorce (Waldron and others, 1984). Although if met, these criteria would allow clients to reap more of the benefits of mediation, they do not represent minimal requirements to move forward.

To identify essential criteria of mediation readiness, our proposed standard for competence to participate in mediation details three sets of cognitive or volitional functional impairments (Beck and Frost, 2006).

Understanding

There are three important cognitive abilities that a client must have to participate in mediation. The first, as stated in our standard, is “A rational and factual understanding of the situation.”

A rational understanding of the situation can be severely compromised by adverse mental states. These states include psychosis, paranoia, mania, audio or visual hallucinations, or other extreme psychological states (Beck and Frost, 2006; Granvold, 2005). Severe psychosis and paranoia can be the result of a variety of causes (among them, mental illness, organic brain injuries, and substance abuse) and can severely limit a person’s ability to CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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understand a situation clearly. Fortunately, when the symptoms are severe, they are relatively easy for everyone to diagnose and uncontroversial when used to screen parties (Brown, 1997; Clement and Schwebel, 1997; Emery, 1994; Gold, 1997). Likewise, symptoms associated with mania and visual or auditory hallucinations (Barsky, 1996) are fairly easily identified and are widely accepted as impeding the mediation process.

Other extreme psychological states can have a more nebulous immediate impact on a client’s functional ability to mediate. One of the less easily detected extreme states is a delusional disorder. Nonbizarre delusions refer to situations that could be true but are significantly overstated. These situations, described in the current Diagnostic and Statistical Manual of Mental Disorders, include believing a spouse has been unfaithful (jealous type) and feeling conspired against, cheated, spied on, followed, maliciously maligned, or harassed (persecutory type) (American Psychiatric Association, 2000). According to the Manual, the persecutory type is the most common, and the delusions focus on a perceived injustice. The affected person will at times repeatedly attempt to engage the legal system for remedies. The sufferers often do not see that they have a problem, and if work is not related to their delusions, they can perform adequately in a work environment.

It can be difficult to distinguish between a party’s delusion and a realitybased concern. In actuality, the divorcing population has a very high incidence of infidelity, harassment, and stalking (Bancroft and Silverman, 2002; Dalton, 1999). Some stalking behaviors predate the divorce, while others begin with the initiation of the divorce (Bernstein, 1993; Mechanic, 2003; Mechanic, Uhlmansiek, Weaver, and Resnick, 2000). Other common occurrences in divorce are for each person to exaggerate their positions. It is not news to family law professionals that clients lie to one another or that some clients conspire with others to hide assets. Thus, delusional disorders may be extreme exaggerations of real-life feelings that commonly occur during divorce. Again, the important criterion in determining whether they create a functional impairment is whether these feeling are so exaggerated that they preclude a rational understanding of the situation. The overall proposed competence threshold is low, and the level of impairment required here is more akin to the level an educated passerby would notice in listening to the exchanges between the parties in the session rather than an impairment that could only be detected through a comprehensive assessment using multiple collateral informants and multiple sources of data.

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Prior research on divorce has also documented that divorce can bring on a psychological crisis (Beck and Frost, 2006; Granvold, 2005), and that this crisis often occurs during the time mediation occurs (particularly during the transitional phase of settling property and child custody or parenting time issues) (Granvold, 2005). These powerful psychological upheavals can “distort, inhibit, sabotage, and shut down logical and rational thinking processes,” thereby making competent negotiation impossible (Saposnek, 2006, p. 263). Although acute psychological states can have an impact on the functioning of a client by effectively blocking a rational understanding of the situation, they do not necessarily do so. Thus, it is important to determine functional impairments contextually to keep the evaluation focus on client functioning and not on a label describing the client’s mental state.

A factual understanding of the situation necessarily includes several components. As with any contract negotiation, clients need to possess an ability to understand relevant information, such as basic facts about their finances, statutory requirements, and legal entitlements, to be able to negotiate in a self-interested manner (Beck and Frost, 2006). A lack of this ability would make mediation impossible.

In addition to possessing the cognitive ability to understand basic factual information, participants must appreciate certain fundamental aspects of the mediation process. Here again, though, it is essential to distinguish between a mastery supporting effective and optimal negotiating and the minimal understandings necessary to proceed in mediation. As a threshold requirement, the clients must have an ability to comprehend the process of mediation (including the role of the mediator, the fact that there is no requirement to sign an agreement even in a court-ordered mediation, the possibility of joint and individual sessions, caucusing, shuttle mediation, the number of sessions provided). Prior research has identified this understanding as an important element to consider in mediating cases. As their first consideration in terminating a case, Davis and Salem (1984) stated that a client’s ability to fully understand the mediation process is critical.

Coy and Hedeen (1998) indicated that a client must not only understand the mediator’s role, but be able to “distinguish it from [that of ] a judge or police officer” (p. 121). Barsky (1997) noted that a client must be able to “remember information from one session to the next” (p. 24), for example, recalling how mediation works and any consensus reached on elements of the mediation agreement. Kelly (1995) observed that a client must have an “ability to master new material” (p. 93), such as basic rules about calculating child support.

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Reasoning

Cognitive abilities must go beyond amassing, comprehending, and remembering basic facts to include, as the second ability our standard proposes, “An ability to consider options, appreciate the impact of decisions, and make decisions consistent with his or her priorities.”

Clients must also be able to reason through the issues and weigh the different options presented. Because clients will be making long-term, legally binding contractual agreements in mediation, it is critical that they be able to reason through different options to arrive at the one best suited to their needs. As noted earlier, clients experiencing extremely high levels of stress, whatever the cause, may not be in a position to negotiate these contracts. Stress can negatively affect cognitive functions, possibly to the point that reasoning is severely impaired (Beck and Frost, 2006). In their minimalist approach to criteria for potentially excluding clients, Coy and Hedeen (1998) explained that the clients need to “see how specific issues are related and connected to each other, especially in a conflict situation” and that clients must “understand cause and effect, match events and their consequences, and tie behavior to its effects on others” (pp. 120–121).

Barsky (1997) observed that clients must “comprehend the nature of concerns brought to mediation” (p. 24). These skills provide a base for the client’s reasoning process.

Although minimal competence would require the clients to be able to reason through options, their final decisions need not be the best possible decisions. Clients must be free to make their own decisions, even if they seem unwise to a mediator. The requirement is only that the decision be reached through a reasoning process. Whether competent clients are willing to use their reasoning abilities is a separate issue (Beck and Frost, 2006). If a client wishes to choose other methods of making decisions, including praying to a higher power, flipping coins, or consulting psychics, the client with reasoning abilities is still considered competent.

“Appreciation of the impact of decisions” would include an understanding of the ramifications of the decisions rather than just the specifics in the moment. For example, clients should appreciate the ramifications of these decisions on their financial future (such as spousal maintenance agreements, child support, retirement accounts, pensions, taxes) and the impact of financial, custody, and parenting time decisions on their children. For example, if a long-term homemaker with no career skills, family money, or means of support refuses to accept any offer of spousal CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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maintenance, does he or she appreciate the difficulty of supporting oneself in those circumstances? If a couple decides on a parenting time schedule that has the child changing residences every two days, do the parents appreciate the impact of this schedule on the child? Depending on the age and disposition of the child, the Family Center of the Conciliation Court (2001) points out, this schedule could either be very disruptive (as would be likely for a teenager with heavy school and peer-group involvements) or could permit the development of a strong, stable relationship (as for a young child who developmentally has a shorter memory).

The requirement that each party “make decisions consistent with his or her own priorities” acknowledges that some clients may be capable of weighing options and comprehending the impact of decisions but are nevertheless controlled in their decision making by fear of the other party (Beck and Frost, 2006). Considerable research indicates that victims of domestic abuse often sign mediation agreements based on the fear of retaliation from the other party as opposed to self-interest or the best interest of the children (Bryan, 1992; Fischer, Vidmar, and Ellis, 1992; Grillo, 1991; Johnson, Saccuzzo, and Koen, 2005; Kernic, Monary-Ernsdorff, Koepsell, and Holt, 2005; Neilson, 2004). These agreements can include provisions that continue to place them and their children at future risk of violence (such as joint custody, unsupervised parenting time, no restrictions on contact with the other parent during child exchanges, unlimited phone or inperson contact with the other parent) (Johnson, Saccuzzo, and Koen, 2005; Kernic, Monary-Ernsdorff, Koepsell, and Holt, 2005). Thus domestic abuse is a significant factor to assess in considering competence of a client to participate in mediation.

The focus, however, must remain on the functional abilities of the victim to make decisions consistent with his or her own priorities separate from the label of domestic abuse. To assume that all victims of domestic abuse are functionally impaired and incompetent to participate in mediation is overbroad. As noted by many prior scholars and practitioners, a functional assessment of a victim’s abilities is needed (Barsky, 1996; Coy and Hedeen, 1998; Davis and Salem, 1984; Juhler, 1999). This assessment includes consideration of many facets of the abuse, including whether a party indicates agreement is not out of free will but out of fear of the other party (Davis and Salem, 1984), a party lacks the “ability and willingness to express and act upon [his or her] own individual needs” (Juhler, 1999, p. 15), the party’s safety is threatened and the party is too fearful to represent his or her interests due to fear of reprisal once the mediation is CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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concluded (Kelly, 1995), or a party has a high level of fear or faced recent or severe abuse (Brown, 1997).

Control

Volitional control is also an important component of competence. Our standard states that a client must also have “an ability to conform his or her behavior to the ground rules of mediation.”

Many potential ground rules exist for mediating cases (Maiese, 2004; Irving and Benjamin, 2002; Melamed, 1996; Maida, 1997; Saposnek, 1998). Ground rules may cover many aspects of mediation, such as the behavior required of clients, the role and behavior of the mediator, procedural rules, and limits on the content of negotiations (Maiese, 2004).

Most relevant to the notion of competence to mediate are the rules focusing on the behaviors of the clients, such as requirements to take turns speaking and not interrupt, to limit discussions of past wrongs, to avoid personal attacks, and to use respectful language (Melamed, 1996). In this broad category of rules for client behavior, there is often no distinction between rules that would be optimal for clients to receive the most benefit from mediation versus the minimal rules necessary to continue mediation.

For example, Irving and Benjamin (2002) provided a list of “Rules of Mediation” that include “own[ing] your own thoughts and feelings; only I statements allowed” and “present[ing] well-considered positions; do your homework” (p. 105). Melamed (1996) included as ground rules, “We agree to call each other by our first names, not ‘he’ or ‘she.’” Although it may be optimal for clients to use “I” statements and call the other spouse by their first name, is it critical that they do so and grounds for termination of the mediation if they do not? We believe the distinction must be whether the consistent violation of a particular ground rule makes the mediation impossible to continue. Such ground rules might include the following: • Do not hit or threaten the other party or the mediator with violence.

• Allow the other party to speak without interruption, as per the direction of the mediator.

• Respond to questions and requests by the mediator.

• Focus on proposals for resolving current conflicts rather than on past wrongs.

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In assessing functional impairment levels, willingness to conform to the ground rules of mediation is not the issue; ability to conform is (Beck and Frost, 2006). Strategic violations of ground rules to intimidate the mediator or the other party are considered bad-faith negotiating as opposed to incompetence. An inability to conform to ground rules can be caused by a variety of factors, including mental illness, substance abuse, traumatic brain injury, delusions, extreme anger, or extreme psychological states.

Extreme psychological states are a common cause of ground rule violations. For example, a party might be so distraught that he or she cannot stop crying long enough to respond to questions and participate in negotiations. Another example might be a party who is so anxious that he or she cannot listen without interrupting the other party’s proposals. Coy and Hedeen (1998) refer to this condition as “acute, temporary incapacity” (p. 118). These authors also recognize that the client is unlikely to be ready for mediation until the incapacity is attended to by a mental health professional. Whatever the cause, the result is that consistent violation of some ground rules makes mediation impossible.

The many factors detailed above must be present at a minimal level in order for a participant to be competent to mediate. High levels of mastery in some areas cannot compensate for a minimal level in another area. For example, a participant may be extremely knowledgeable about the mediation process and the specific financial elements involved in the divorce (a strong factual understanding of the situation), but if he or she is currently psychotic and believes that the mediator is the sister of Jesus and will punish the other party regardless of the contours of the mediation agreement (a poor rational understanding of the situation), the participant should be considered incompetent regardless of the extent of factual understanding.

More complex dilemmas arise when both parties meet the minimum level of functioning to be competent, but one party is at an optimal level and the other barely meets the minimum. In such a case, lack of competence is not a bar to proceeding with the mediation. Other factors, such as risk to the parties or fundamental fairness, may make the case inappropriate for mediation.

Assessment of Competence to Participate in Mediation A thorough review of screening and assessment instruments and protocols is beyond the scope of this article. Nonetheless, it is helpful to recognize general practices that mediators and mediation centers should consider.

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We recommend that mediators screen participants for several factors in addition to competence, particularly risk to participants. The assessment of domestic abuse has a long history of scholarly commentary and research.

Well-standardized screening instruments can be administered by mediators not trained in mental health in order to detect lethality in intimate relationships as well as other forms of domestic abuse (Campbell and others, 2003; Ellis and Struckless, 2006; Feindler, Rathus, and Silver, 2003; Hilton, Harris, and Rice, 2004; MacMillan and others, 2006; Neilson and Guravich, 1999; Paranjape and Liebschutz, 2003; Tolman, 1992). It is a mediator’s professional obligation to understand issues related to domestic abuse, know how to screen for it, and identify how it could affect mediation negotiations. In the mediation context, assessments of domestic abuse must be done individually for all clients so that any potential victims are freer to discuss fears without their abuser present. Even then, the mediator should still present multiple direct questions regarding specific abuserelated behaviors in a nonjudgmental way.

The competency screening for the issues outlined in our proposed common standard can also be carried out by intake staff or by the mediator. Modifying existing procedures to screen for factors outlined in our proposed common standard would be relatively easy to do. Because our standard objectively states the factors determining whether a participant is competent, and because there are reliable means to screen for many of those factors, there should be a high level of agreement as to whether a party is competent to participate in mediation. In the case of differences of opinion, a more thorough assessment can be done, or in order to protect the potentially incompetent party, the mediator can follow the more conservative opinion and find the case inappropriate for mediation, at least without the additional interventions described in the next section.

In mediation centers, large private practices, or conciliation courts, there may already be intake staff who screen potential clients. In most cases, however, mediators themselves will be screening their own clients.

Some commentators have raised concerns about a conflict of interest in serving a dual role as assessor and mediator. It is well established that therapists for specific clients should avoid serving as mediators or forensic evaluators for those clients (Dworkin, Jacob, and Scott, 1991; Heilbrun, 2001; Kelly, 1983). The same role confusion, however, is not present for a mediator. Both assessors and mediators serve as neutral parties, unlike a therapist who is an advocate for his or her client. A common standard for determining competence may also help a client understand that a mediator CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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serving as assessor is not making an arbitrary decision but is simply applying stated criteria to the case at hand.

In addition to screening for risk of violence and for competence to participate, a mediator may also want to screen for elements related to fundamental fairness. If power imbalances are too great, the mediation may seem unjust even if both parties are competent and there is a low risk of interparty violence. This article, however, only focuses on one part of a thorough screening: an examination of minimal mediation readiness, or competence to participate in mediation.

Practical Implications and Next Steps Currently, if a mediator feels that a party to a divorce mediation is not able to participate effectively, there are few guidelines for how to report that decision back to the court having jurisdiction over the case. With a shared, more detailed standard, mediators would be able to identify the reason a party cannot participate in mediation. This determination, which is independent of any content of a mediation session (which would obviously remain confidential), would give the court information important in following a fair judicial process. Some larger jurisdictions already have alternatives to a traditional court proceeding, such as assignment to a parenting coordinator (also known as a special master or family court advisor) or a system of differentiated case management (Schepard, 2000; Williams and Buckingham, 2001). In other jurisdictions with fewer resources, the traditional court proceeding has, at a minimum, inherent protections for both parties that may be lacking in a deregulated mediation process.

This article intends to open a debate designed to culminate in a consensus among mediators about a common standard for competence to participate in mediation. The establishment of a common standard would have a number of implications for divorce mediation practice beyond assisting individual mediators in specific cases.

Mediator Training

In most training curricula for new family mediation practitioners, establishing the competence of clients to participate in mediation is omitted or if presented, explained in such cursory terms that novice mediators are left with little guidance. A common standard such as the one proposed would give new mediators specific criteria to gauge in determining whether CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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parties are capable of proceeding. The training sessions can instruct the mediators on how to assess each component of the common standard.

Model Standards.

Existing model mediation standards address competence to participate in vague terms. A more specific standard could be added to the Model Standards of Practice for Family and Divorce Mediation. Further, we would argue that this standard is applicable to mediation in any context affecting people’s legal rights. As such, a more specific standard could be added to the Model Standards of Conduct for Mediators and the ADA Mediation Guidelines.

Court Rules, Regulations, and Statutes

Some jurisdictions may choose to incorporate a more detailed standard in their court rules, regulations, and statutes related to family mediations.

Such codification would increase uniformity of practice within a jurisdiction and lead to less variation in outcome based on which mediator happens to be conducting the mediation.

Screening Instrument

The development of a common standard for competence to participate in mediation would enable the development of a screening instrument for use by mediators or mediation center intake personnel. Although some existing instruments screen for the presence of domestic violence between parties (Ellis and Struckless, 2006), there is no current instrument to gauge the broad range of functional capacities relevant to competence to mediate.

Means to Facilitate Competence

Once there is a clear understanding of the capacities needed to proceed in mediation, it is easier to identify means to raise the level of those capacities in mediation participants. Parties can participate in orientation or educational sessions provided by a mediation center or a court (or simply read provided materials) designed to increase understanding of basic laws and procedures related to the divorce process. Parties can work with a counselor to reach a level of emotional stability required for participation in the mediation process. Mediators can make adjustments in the mediation environment to accommodate weaknesses of parties and raise their functional CONFLICT RESOLUTION QUARTERLY • DOI: 10.1002/crq

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level up to the required minimum. Allowing the presence of a support person may sufficiently increase a party’s functional capabilities.

Conclusion Divorce mediation can be a complex process that places stringent demand on the parties to the mediation. Not all individuals are capable of functioning at a level sufficient to permit a mediation to proceed, and far fewer can participate at an optimal level that would lead to a fair outcome. Readiness to mediate is a longstanding concept in the mediation literature and one that bears closer examination. By elaborating a uniform standard for a minimally required level of mediation readiness, which we term “competence to participate in mediation,” mediators can ensure more consistent practice that identifies the essential abilities needed in mediation and works to facilitate those abilities in mediation clients.

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Connie J. A. Beck is an assistant professor of psychology in the University of Arizona, Tucson.

Lynda E. Frost is the associate director of the Hogg Foundation for Mental Health at the University of Texas, Austin.

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