Article originally appeared on August 31, 2020 in the Western New York Daily Record.
As a lawyer advocate, preparing a client for mediation is assisted by encouraging the development of a narrative of their story — in their own voice. This expression of their experience is something that does not happen in litigation. Reading this narrative during mediation provides all parties an opportunity to hear the situation from the complainant’s point of view. This tends to be an emotional narrative that can portray damage. The benefit of the narrative for the client involves being heard, something essential to obtaining a settlement.
The client’s stress level can be exacerbated by detailing their complaint in a statement. Although stressful, reading their statement can also be an empower- ing action in which they have a voice and have the opportunity to be heard. Having the client’s therapist present who is the safe, non-judgmental person who has heard the details in therapy helps ground and focus a client. This is especially true when a client has struggled standing up for her/himself or has been systematically discriminated against. Having a trusted therapist present typically makes the client feel safe and believed.
There are a variety of other benefits to having the patient’s therapist joining in the mediation process. Two outstanding benefits are that the client has a support system present and the therapist can assist the client by asking questions throughout the day, allowing the client to contribute useful information. It has been extremely productive for both the attorney’s progress toward a goal and the client’s coping during the process. The provision of support and guidance to the client as well as providing the client with a real-time ally during the mediation process can only be helpful during the stressful interactions that the client will experience facing the person who propelled them into legal action. As coping is typically the theme in therapy, using new or enhanced coping skills during mediation may depend upon the presence of the client’s therapist. The explicit and implicit support provided to the client by the therapist’s presence can be a source of strength and validation. This is especially true when the client’s complaint involves humiliation, destruction of self-esteem, or removal of a sense of safety.
Many times, a client’s past is relevant to the facts alleged. Painful memories can be evoked and reacted to during mediation. Blame and shame are often emotions that block willingness to settle, as some sort of apology is usually needed. A lawyer can explain why no one admits wrongdoing, but a therapist can explain why the settlement is truly a version of an apology. Having a lawyer and a therapist explain the concept of damages and risk from a legal perspective and from a therapeutic one allows for comprehensive understanding.
Bringing client and therapist together when the client is going to face the person or persons who caused their difficulties has a number of benefits. Preparing a client, especially a Post-Traumatic Stress Disorder (PTSD) client, in therapy for being in proximity to the traumatizer is necessary. Access to therapeutic guidance to cope during the experience is invaluable. The presence of the client’s therapist can make a critical difference to the client confronting the person or situation which created the problem. If the client loses focus, the therapist is there to re-focus. If the mediation process is overwhelming the client, the therapist is ready to address the episode with agreed-upon strategies. The knowledge that the client has a professional there expressly for them who understands every aspect of the client’s difficulties, the underpinning psychological aspects, and effective efforts previously employed can be vitally important. Another advantage of having the therapist at the mediation table is an opportunity for the defense counsel to interact with the psychotherapist. The lawyer may choose to have the therapist explain during mediation how the rigor and pain of litigating the dispute, while making a stand about unfair treatment, requires the client remain attached emotionally to that toxic workplace experience. During the several hours of mediation, the therapist can interpret actions of the opposing counsel that an attorney may not readily see as well as provide cues to unleashing a meaningful strategy.
When the psychotherapist is invited in and the patient’s counsel agrees, the therapist can discuss the case with the defense attorney and the defendant. When invited to do so, the usual questions for the therapist center around how a diagnosis is determined, assessment of the current functional levels, how the situation has affected the client’s functioning, and what the prognosis would be for further development of functioning.
The tone of a meeting consisting of the defendant, their counsel, and the complainant’s therapist differs from one where all parties are present. It tends to be more educational and instructive than adversarial. There is the opportunity to ask the therapist for a definition of terms, probe unfamiliar concepts, and interact about uncomfortable aspects. During these meetings, the therapist provides humanizing aspects of the client’s experience. This goes beyond describing the symptoms. The portrayal by the therapist can be most useful in articulating damages and trying to determine what agreement can be arrived at concerning the resolution of the legal issue. In addition, the therapist’s description of a clinical interview, as well as strategies for determining the veracity of the impact that is being portrayed by the client, can be helpful.
Communication is a vital aspect of the mediation process. An expert professionally trained and credentialed in depicting the human condition is an asset. The expert therapist can craft the best possible avenue to discuss and detail the client’s experience. This is a way to maximize the chances of a successful mediation. Having an expert therapist at the mediation table is creative and advantageous. Perhaps most significantly is the feeling that the client has a “Team” on his/her/their side. Being comfortable in the space of a mediation table is crucial when working to create options for settlement. The interplay of legal and therapeutic skills is the perfect recipe for “Getting to Yes” and achieving a positive outcome!
Lindy Korn, Esq. is a Civil Rights Attorney and Mediator. Dr. Trigoboff is a Doctor of Nursing Science, a Clinical Nurse Specialist and quadruple board-certified psychotherapist in private practice in western New York for 35 years
