Thursday, June 5, 2014

My experience in Multnomah County Probate Mediation involving cognitively impaired parties.

The mandatory mediation of probate disputes in Multnomah County seems to be working well and looks likely to become a permanent feature of probate litigation in Multnomah County. I can't say that lawyers have embraced the idea, but most of them now grudgingly admit that it resolves a lot of cases.

I have worked as either the mediator or for a litigant in a lot of mediated cases since the program began, and most of those cases have settled. That is exactly what the court expected would happen when it established the program. I think that the system is working well, with one exception. I have not seen a lot of successful results when one of the participants is cognitively impaired or mentally ill.

Mediation is a process in which a mediator who is trained in negotiation coaches the parties to negotiate with each other effectively. The mediator urges them to narrow and identify issues, makes them clarify their interests, and forces them to balance risk and reward. Negotiating well does not come easily for most people. In my own case, I had practiced law for many years and it was only when I went through mediation training that I discovered how bad I was at negotiation. When serving as a mediator in a case, I am  asking that the parties engage in difficult and unfamiliar tasks. It is hard for most people, but for.people with cognitive deficits or mental illness, it can be impossible.

I find that people with cognitive deficits and mental illness often have a hard time with the idea that people of good faith can disagree, not only on what should happen, but on what has happened in the past. They become fixated on either "truth" or the idea that a person on the other side of the case is a bad person who will be punished by the judge. Where most people easily accept that closure--the end of the conflict--has value, people with cognitive impairments are often unable to give a reasonable value to "ending the case here and now." Cognitively impaired and mentally ill people are less able to evaluate risk of loss, and cannot realistically evaluate the stress of the courtroom..

Cases involving cognitively impaired people do settle in mediation. My experience is, however, that they don't settle because the impaired person has made a rational decision to settle based upon risk and reward, but rather because lawyers, family members, and even the mediator, have forced settlement upon them. The settlements are sometimes repudiated under the local rule, because by the next morning the impaired person has regained the energy to fight.  More often, however, the settlements are sabotaged by subsequent behavior. I think most people have a little buyer's remorse about settlements in mediation, but in my experience only the impaired act upon it to sabotage the settlement terms.

I don't think the mandatory mediation program needs to be changed to accommodate this problem. The court can waive mediation upon good cause. I think it should be considered good cause, that a party, due to mental illness or cognitive decline, will most likely to be unable to reap the benefit that mediation offers.

1 comment:

  1. This comment has been removed by a blog administrator.