Mediation is a protected process which occurs in both state and federal courts, and elsewhere. The timing of a mediation may be early on, after a few depositions have been taken, or before trial. Whenever it happens, I believe the client’s therapist should be at the mediation table because it enhances the chances for an end result of settlement.
For several years I have invited therapists to attend mediations in discrimination cases where my client’s emotional distress is an issue. Often, the client will ask who she/ he can have at the table to provide support. When preparing for mediation, I ask my clients to prepare an Impact Statement describing what happened to them based on the discrimination they endured. This statement is their narrative journaling and recounts the facts of what hurt them from an emotional and physical point of view. Often the statement will detail humiliation, harassment, being demeaned, lack of self-esteem, and fear of complaining and of filing a claim resulting in litigation. The stories depict how the claims affected the client’s spouse, partner, children and parents, and co-workers.
After reviewing the Impact Statement with my client, we discuss that they will read it at the mediation and will be heard. This opportunity does not exist anytime else in the litigation process. Being listened to by the people who discriminated against you is part of what is important to my clients in preparing for a settlement. Speaking up at mediation is often uncomfortable for the client and when asked if they want their therapist present, they usually say “absolutely”!
I see a direct correlation between settlements and therapists at the table, which makes sense because the support system is strong.
To better explain the value of having a therapist at the mediation table, I have posed five questions to a therapist who has attended mediation and the below reply is what I want to share. I believe that any party may wish to have therapists at mediation tables, but I know for the workers I represent, it makes a tremendous difference in results.
LK: How do you prepare with your patient for mediation?
SD: The work for preparing my client for mediation starts long before the mediation session. In a safe therapeutic space with enough time, my client can explore the layers of his or her story. There are often contradictory emotions involved that have to be processed before my client can get to a place of developing a clear narrative through a lens of self-compassion. Eventually, this therapeutic process often leads to a drive toward healing and justice. The next step involves developing the courage and strength to take action toward amends and repair. Shortly before my client’s mediation session, we will work on reducing anxiety and increasing confidence through a therapeutic process called “rehearsal.” I will have my client read his or her impact statement while imagining being in mediation. My client will develop tools and strategies to cope effectively with the parts of mediation that feel anxiety-provoking.
LK: What support can you offer the patient at mediation?
SD: My mere presence can trigger an association of the safety, calm, and strength my client had experienced previously in the therapy process. My client can more easily remember the strategies and tools he or she rehearsed for anxiety-provoking moments. If my client does have difficulty connecting with the coping strategies, I can actively facilitate my client through that process in the moment.
Additionally, it can be incredibly helpful, with the permission of my client, to write my own statement that can be read alongside my client’s. I can speak to my own professional observations and interpretations of the mental health impacts of my client’s experience.
LK: How do you impact the lawyers at the mediation table?
SD: I impact the lawyers at the mediation table in a couple of ways. First, I create an emotional anchor for my client, reducing my client’s anxiety, stress, and emotional triggers which allows for a smoother and more productive mediation session. Second, by providing my own statement and answering questions, I provide an objective lens into the client’s subjective experience. I can help to clarify and explain, in psychological terms, my client’s experience.
LK: Does the mediation have a therapeutic benefit for the patient?
SD: Mediation can definitely have a therapeutic benefit for clients. It gives them an opportunity to tell their story and experience repair and healing. When there is a settlement, the client receives a message of validation for their pain. It doesn’t change what happened to them, but they get to experience a sense of having been truly heard.
LK: Your comments from having been at a mediation?
SD: At a recent mediation I attended, my client read her impact statement which was rich and engaging. It was a story we had been working to unpack in therapy for several months. My client came from a background in a community where women are systematically silenced. She had never had the opportunity to experience her voice being heard. The recent events, that led her to seek mediation, reopened old wounds of oppression and discrimination. Going through the mediation process itself was a healing experience for my client. She spoke up for the first time in her life and was able to receive the message, through a settlement, that her story mattered, and her voice was heard. It was so important for my client to have a successful outcome when she spoke up. This will, no doubt, make it easier for her to continue to stand up for herself in her life as her future unfolds. I know that my client would not have been able to go through the mediation process as successfully without the support of therapy before, during, and after her mediation experience.
Lindy Korn can be reached at lkorn@lkorn-law.com. Shadia Duske is a licensed psychotherapist in both the United States and Ireland, who has been operating her own practice since 2010.
