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What mediators need to know about mental health

Q&A with Arabella Tresilian, Associate Mediator, Medical Mediation Foundation

At the Civil Mediation Council Conference 2020, the Medical Mediation Foundation’s Arabella Tresilian was interviewed by expert mediator Carolyn Graham on what mediators need to know about mental health and mediation. Here are some of the key takeaways from their conversation.

[Please be aware that this article covers some sensitive topics and reader discretion is advised.]

What brings you to mediation with a specialist interest in mediation and mental health?

For twenty years I worked as a consultant in management and organisational development in the public and corporate sectors, with a specialism in mental health and social inclusion. In this work, I saw the stress and distress caused by conflicts and disputes and this initially piqued my interest in mediation.

I also have lived experience of mental ill-health going back to my teenage years, and in my late thirties I received a diagnosis of autism that helped me understand my unique neural wiring. A few years ago, I was particularly unwell with regards to my mental health, and encountered a series of legal and financial disputes as a result - leaving me even more emotionally devastated. It confirmed my belief that there must be a better way for resolving disagreements than via legal wrangling, and I decided to retrain as a mediator specialising in cases involving individuals experiencing mental ill-health.

I now mediate in Court of Protection, workplace, employment, civil and community cases, where mental ill-health is or may be a feature of the mediation. I also work with Mind and Bath Mind to train groups in Mental Health First Aid, to encourage positive dialogues about mental wellbeing at work and in the community. I always emphasise that I’m not a clinician, but I speak as a lay person keen to support a better societal understanding of mental health.

How do you define ‘mental health’?

The World Health Organisation defines mental health as ‘a state of well-being in which every individual realizes their own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to their community.’ It’s important to recognise that we all have mental health, and there is no health without mental health.

Mental Health First Aid sees mental health as a continuum with two dimensions. On the one hand we have the medical model of diagnosis (‘no diagnosis’ to ‘complex diagnosis’); and on the other we have the social model of our lived experience (‘maximum mental wellbeing’ to ‘minimum mental wellbeing’.) We move around the mental health continuum across our days, weeks and lives. Someone with a diagnosis, like schizophrenia or bipolar disorder, may live well with their condition and thrive. On the other hand, someone with ‘no diagnosis’ may be struggling to cope and is as equally deserving of support as someone with a formal diagnosis.

On the topic of neurodiversity, it’s valuable to note that neurodiverse conditions are not in themselves mental health conditions, though individuals may experience mental health challenges associated with, for example, stigma, societal expectations and burnout. The term ‘neurodiversity’ may be used to refer to Autistic Spectrum Conditions, Dyspraxia, Dyslexia, Attention Deficit Hyperactivity Disorder, Dyscalculia, Tourette Syndrome, and others. Each of these conditions can bring its own invaluable gifts.

What do you see as the main challenges facing mediators when it comes to mediation and mental health?

 

We want to be seeking to create ‘psychologically safe environments’ in all our mediations, but especially where someone is experiencing mental ill-health. ‘Psychological safety’ is defined as being able to show and employ one's self without fear of negative consequences of self-image, status or career. (Kahn 1990)

Psychological safety can often be achieved by careful deployment of the normal protocols of mediation:

● no interrupting or speaking over each other

● taking breaks if emotions are heightened

● upholding respect for people’s views

● thoughtful seating arrangements to reduce a sense of threat

● clarifying the scope, agenda and agreed outcomes of the mediation at intervals

We may also wish to bring enhanced flexibility to our mediation processes to create psychological safety:

● extending initial private meetings to develop trust and rapport

● increasing the number of breaks in joint meetings to check-in with parties, and give rest time

● shifting from whole day mediations to two half-day mediations over a few weeks

As conflict resolution practitioners, naturally we are always seeking to ‘do no harm’, and sometimes we feel worried that if we ask someone about their mental health, we will make it worse. Generally the opposite is true if we ask people in a private space and a respectful manner.

Helpful questions to put to a party might include:

● “Would you feel comfortable telling me about your mental health and wellbeing at this time?”

● “Has this conflict contributed negatively to your current mental health in any ways?”

● “Are you aware of possible external sources of support you could access?”

● “Is there any aspect of your medical care that it would help for me to know about?”

● “Are there any adjustments we could make to the mediation process that would make it easier for you to participate?”

What are some of the pitfalls that mediators need to avoid when talking about mental health or neurodiversity?

We’re aiming to be clear, non-judgemental and neutral in our language at all times. These pointers may be useful to use when we’re meeting or discussing a party experiencing mental ill-health:

  1. It’s best to use the term the person themselves uses to describe their mental health, so do ask which terminology they prefer as a starting point.
  2. We’re always looking to use neutral and non-stigmatising language, so ‘living with’, ‘experiencing’ or ‘affected by’ mental ill-health is preferable to ‘suffering with’ or ‘a victim of’, for example.
  3. It can be helpful to know that we might talk about a mental health ‘condition’, or ‘diagnosis’ or (the medical term) ‘disorder’ when someone has been given a diagnosis. When talking more generally about mental ill-health, terms like mental health ‘difficulties’, ‘problems’ and ‘issues’ have all been found acceptable via research with people with lived experience - but again ask the individual for their preference.
  4. There has been a slip into people referring to mental ill-health as ‘mental health’ - as in the mis-coined phrase “Sadly, she has mental health...” This is confusing and inaccurate, so we aim to avoid this.
  5. We aim not to use mental health terms as nouns or adjectives - so ‘she is a depressive’ or ‘he is bipolar’ would be better described as ‘she has a diagnosis of depression’ or ‘he has bipolar disorder’. That said, there are plenty of us in the autism community who will say, “I am autistic” and recoil from being described as ‘a person with autism’, so again, ask the person.
  6. We want to avoid making insinuations, assumptions or trivialisations about mental health conditions, so phrases like “We’re all somewhere on the autistic spectrum!”, “I’m a little bit OCD” and “She went mental” are all thankfully on their way out.

Most of all I would suggest that there is value in focusing less on an individual's medical ‘diagnosis’, and more on their feelings and needs. Equally, we can describe behaviours rather than ‘symptoms’.

What are the benefits of a mediator knowing in advance about someone’s mental health condition? And the possible problems of knowing in advance?

Benefits of knowing in advance about a party’s mental health condition may include:

Pacing of the mediation: We have the opportunity to take stock and work out the best pace for the person via building trust and rapport in our 1:1s, and learning more about the person

Adjustments: We can ask the person directly what ‘adjustments’ would help them access the mediation and get the best out of it.

Breaks: We can decide with the person how they will let you know if they need a break

Emotions: We can make extra space for emotions unlocking (like sadness and grief)

Disciplinaries / Grievances: symptoms of poor mental health (including underperformance) are often confused with ‘poor attitude’, ‘aggressive behaviour’ or ‘not caring’. It may be valuable for parties to disclose and discuss mental ill-health in the safe space of the mediation as part of a workplace resolution, so you may want to explore this with the person in advance.

Problems associated with knowing in advance about a party’s mental health condition may include:

Unconscious bias: As mediators we may make assumptions about a person’s capacity, or unconsciously be affected by negative stereotypes or stigma around mental health

Assuming the mental ill- health is the root of the conflict: We may think that because a party has mental ill-health that the conflict cause lies only with them. Actually there may be a ‘chicken and egg’ situation where the conflict is aggravating the mental ill-health and ‘problem’ behaviour of the person. For example, a manager’s managerial style may be a considerable trigger for an employee’s anxiety or low mood. Fortunately, mediation is an excellent arena for exploring these themes.

Self-consciousness of the mediator: We may worry we’re unskilled or we’ll somehow make it worse for the person. We don’t need to be a therapist or a psychologist to help though. Our normal mediator’s compassion, along with the prospect to bring an end to a dispute, will be a great reassurance. If we can relax, we are helping the person to relax and feel comfortable too.

Overall: It’s valuable to talk directly and openly with the person themselves, so they can share with you whatever they want you to be aware of, with the main aim of understanding how best to support them to get the best out of the mediation.

 

To what degree should a mediator be drawn in to making an internal ‘diagnosis’ of a mental health condition (especially in circumstances where it has previously been alleged - by either the referrer or another party) and/or you have your own concerns?

Generally speaking, there is no need for anyone to know about a diagnosis, or absence thereof. It’s helpful to know that 1 in every 6 members of the UK workforce is currently living with mental ill-health – and also to know that 70-75% of people with diagnosable mental illness receive no treatment at all. (Ref: MHFA England).

In a workplace case, if the mental health condition is affecting work, then it is important that the employer’s policies are adhered to. This may include a sickness absence policy or a wellbeing policy, and may involve seeking the guidance of the person’s GP or a referral to Occupational Health. Equally, it will be valuable to ensure the employee is aware of any Employment Assistance Programme (EAP) which will often offer counselling or other support.

If we sense that anxiety or depression may be a factor, we can remember that we all experience ‘anxiety’, ‘stress’ or ‘low mood’ at times, so as mediators we can think of it in that way and relate to the person at that level. A successful mediation will help the person up the ‘mental wellbeing’ axis of the mental health continuum, by offering clarity or closure for example. So poor mental health should not be seen as a barrier to mediation, rather mediation may we act as a therapeutic intervention.

There are a couple of areas where it will be important for a mediator to pause and reflect carefully on their concerns, and consider seeking additional professional input, or going back to the referrer to share those concerns:

If someone is experiencing acute cognitive distortions, hallucination and delusions, they may be experiencing symptoms of psychosis. In that case, it will be important for the person to consult their GP for advice before proceeding with a mediation. In such cases, a person may be able to access an Independent Mental Health Advocate to proceed with a mediation when advised to be well enough by a healthcare professional.

If you sense or see that the person is at risk of harming themselves or others, or is expressing suicidal thoughts, you need to take this seriously. Talk to the person and let them know you will be sharing your concerns with the referrer - or another professional person involved in their healthcare. They may need urgent professional help. For a brief online training in this sensitive matter, I recommend this free resource: https://www.zerosuicidealliance.com/training

From your experience, what are some of the most likely mental conditions that mediators might encounter within mediation?

Mixed anxiety & depression is the most common mental disorder in Britain, with 7.8% of people in the UK meeting the criteria for diagnosis. Mixed anxiety and depression has been estimated to cause one fifth of days lost from work in Britain.

You can learn more about the signs and symptoms of Anxiety here and Depression here.

People may or may not be diagnosed - or ever wish to be diagnosed - with a mental health condition. Our role as mediators is to keep a ‘psychologically safe environment’ for all, and work with ‘behaviours’ rather than ‘diagnoses’.

What behaviours might be associated with these conditions and how can mediators best interact with and manage these behaviours?

Our brains are wired to be highly sensitive to the ‘fight or flight’ mode, when our amygdala senses threat - either visible or perceived - and reacts with strong psychological responses in preparation for us to fight, or flee, our way out of our situation. If we are experiencing mental health difficulties, these normal reactions can feel or appear especially pronounced.

One response will be that we show very heightened emotions of fear, combativeness or distress. In this case it can help as mediator to:

● Invite the person to take a break and get up and move around. The body is anticipating fight or flight movement, so simply moving the body can process some of the adrenaline and cortisol, and reduce a trauma response. (A helpful reference is: The Body Keeps the Score: Mind, Brain and Body in the Transformation of Trauma by Bessel van der Kolk (2015)

● Name the emotions with the person - and validate them - and receive the ‘messages’ of the emotions. For example, ‘anger’ can be a sign we feel our ‘boundaries have been breached’. Talk about what the person needs to feel they have safe boundaries. (The Language of Emotions: What Your Feelings are Trying to Tell You by Karla McClaren (2010) is an excellent book on this topic.)

● I recommend coaching clients in the techniques of NVC or ‘Nonviolent Communication’ which empowers individuals to express their feelings and needs associated with specific circumstances, and to follow them up with the requests that lead to positive mediation outcomes. (See: Nonviolent Communication -- A Language of Life: Life-Changing Tools for Healthy Relationships by Marshall B Rosenberg (2015))

Another natural reaction to an overwhelming sense of threat is a ‘freeze’ or ‘flop’ response, in which you may see the individual becoming withdrawn, avoidant or frozen in their reactions. This is possibly a sign of high distress, and an indication to:

● Take a break and move around.

● Be as present, confident and relaxed as possible with the client. Modelling long, calm out-breaths, that can help ‘co-regulate’ the other person into a calmer state.

● Undertake some further 1:1 work with the client to help them articulate what they want to convey or achieve in mediation.

● Do some further work with the other party too, ensuring they are in a place to make offers and requests, as opposed to, for example, triggering further distress. This may require time.

● Focus on “What Now” and “What Next” to reduce a sense of overwhelm with regard to the mediation process.

● Use questionnaires or quizzes (eg MBTI) in order to gather information - as opposed to talking only.

● Get visual - flipchart - or shared documents on the Zoom screen can draw attention and give a sense of progress being achieved. Get ideas for mediation outcomes written down visibly to reduce uncertainty.

In Your Brain at Work (2009) David Rock discusses 5 domains where we are particularly sensitive to perceived threat, to a degree that we can get a ‘fight of flight’ response: Status, Certainty, Autonomy, Relatedness, Fairness - aka ‘SCARF’. Attending to any areas of the mediation in which we can bring reassurance to the SCARF domains for all parties will mean that people are more likely to be able to step into the calmer ‘parasympathetic nervous system’ state, in which we can think more clearly and make decisions more easily.

What’s the mediator’s role in deciding on a party’s capacity – or incapacity – to participate in mediation. (In other words, who gets to decide)?

Primarily, this decision lies with the person themselves. As mediation is voluntary, we respect people’s willingness to participate. If there are any doubts, a GP, Occupational Health or the person’s mental health professional may be able to give a professional opinion.

I think it can be valuable to offer the person the opportunity to bring a support person or advocate - someone they trust and who can offer emotional support. As mediators, we need to brief the supporter on their role - ensuring they understand that they are not a party to the mediation and may be asked to keep their input restricted to private meetings only.

We can also review the scope of the mediation if we sense it may put too much pressure on an individual. Maybe a first joint meeting could seek to put some temporary measures in place to address immediate or urgent concerns, with a view to addressing more substantive issues at a second mediation meeting, or once those initial measures have been trialled for a few weeks. For example, the parties may decide to agree workable relations ‘for now’ to improve things on a day to day level and to build confidence/trust, and then address more complex matters after that base layer has been built.

In rare cases, it may be appropriate for a person to undergo and legal ‘mental capacity assessment’ under the Mental Capacity Act before embarking on mediation proceedings. This would be undertaken by a registered professional who will provide an assessment as to whether a person has the capacity to make decisions for themselves. If they are deemed to ‘lack capacity’ an Independent Mental Health Advocate may become involved to support the person contribute to the mediation. The ‘Official Solicitor’ may provide legal representation to the individual.

Overall, if we feel we are not comfortable or equipped to undertake the mediation, we must feel free to say so. Everyone should feel comfortable to move forward together. It can be really valuable to invite a co-mediator to participate with you. A co-mediator could:

● Be a qualified mediator with a health or social care background, or lived experience of mental ill-health

● Attend to one of the parties if they are distressed or leave the room suddenly

● Give you valuable guidance or support, and be a second pair of eyes and ears

● Be charged with looking out for the wellbeing of individuals

What is the legal framework that mediators need to be aware of?

The following legislation is generally applicable, but may be especially valuable for referrers, employers and mediators to be aware of in employment and workplace mediations:

Equality Act 2010 - a party’s mental health may be considered a ‘disability’ under the Equality Act and thus will be protected from discrimination. An employer may need to make ‘reasonable adjustments’ to support the person access the workplace. Also it’s valuable to be aware that people within other of the ‘protected characters’ in the Equality Act (eg including race, sexuality, gender) may experience marginalisation which can negatively affect mental health.

Health and Safety at Work Act 1974 - this act covers an employers’ responsibility to protect employees from harm, including stress. All organisations are meant to undertake Stress Risk Assessments.

Access to Work - this is a government scheme that provides support for people with disabilities to access the workplace

Other major legislation on mental health includes:

● Mental Capacity Act 2005

● Mental Health Act 1983

Where ‘reasonable adjustments’ would be appropriate in a workplace setting, I recommend Mind’s workplace Wellness Action Plans as a useful, free resource.

 

 

What can mediators do to look after their own wellbeing and mental health?

● Supervision is invaluable for exploring our practice, and processing our own emotions

● Co-mediation is a great way to involve another pair of eyes and ears

● Maintain strong professional boundaries so everyone is clear about what you can offer - and what you can’t, including confidentiality when there are safeguarding concerns.

● Rest and unwinding - taking care of our own autonomic nervous system helps us to be a good ‘co-regulator’ for our parties

● Routines of self-care - especially after mediation days. Do an audit of how much self-care you undertake using the 5 Ways to Wellbeing. Practising self-care as mediators benefits us and the people we are working with.

You teach Mental Health First Aid. How would mediators benefit from being trained as a Mental Health First Aider?

I recommend mediators undertake Mental Health First Aid training if they feel they would find it valuable. It gives us:

● Confidence to open up mental health conversations

● Knowledge of signs and symptoms to look out for - from anxiety to suicidal crisis

● An evidence-based formula for offering safe support and signposting to someone experiencing mental health distress

● The skills to assess for an urgent mental health crisis - and to feel confident knowing what to do

Where can mediators go to find more information on this subject?

We are learning collectively about mental health as a society - and there are many great new resources appearing all the time. Here are some resources I find particularly helpful as a mediator:

https://www.mind.org.uk/

https://www.nhs.uk/conditions/stress-anxiety-depression/mental-health-helplines/

https://www.mentalhealthatwork.org.uk/

https://www.acas.org.uk/health-and-wellbeing

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