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Mediation and Mental Health Handbook - an excerpt

by Kristi Thompson

March 2022

This handbook was developed by the Texas Dispute Resolution System and the National Center for State Courts.

Kristi Thompson

This handbook is the result of the emerging and increasing recognition of the need to appreciate, comprehend, and employ best (and improved) practices in the delivery of mediation services.

We have included a couple of the snippets below, and the entire handbook may be found here.

States of Well Being

Well-being and mental health are issues that courts and court programs may not necessarily recognize. Court processes are not necessarily created or practiced to adequately address wellbeing and mental health. The World Health Organization defines mental wellness as “a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.”4 In fact, symptoms of a person’s mental illness, particularly if untreated, may influence a person’s thinking, emotional state, individual behavior, and the ability to relate with others.5 These four quadrants may likewise impact engagements for court events and with mediation sessions.

Mental wellness, therefore, consists of the complete package of physical, social, and mental health. However, having physical, social, and mental health may not indicate the absence of illness or infirmity. The Texas Health and Safety Code defines mental illness as an illness, disease, or condition, other than epilepsy, dementia, substance abuse or intellectual disability, that: A) substantially impairs a person’s thought, perception of reality, emotional process, or judgement; or B) grossly impairs behavior as demonstrated by recent disturbed behavior.

The Trauma of Divorce

It may be traumatizing for parties to engage with the court system to obtain a divorce or dissolution of marriage. Family court parties may be destabilized and find themselves in a type of survival mode. In criminal courts, the court process may engage with bad actors attempting to be on their best behavior. But in family proceedings, parties may be at the worst time of their lives and their behavior may reflect it. The nature of the legal system adds to the demise of a person’s state of well-being. What might be otherwise good parents may find themselves “slinging mud” to gain or maintain parenting-time. The adversarial process creates an imbalance for families and can create a situation where children are negatively impacted. Secondary impacts include an imbalance of wellness and further interaction with the justice system. Mediators are positioned to be the first responders, identifying where parties are in their state of wellness as the mediators perform their dispute resolution process. What happens if mental instability is introduced? The National Institute of Mental Health9 provides these definitions: 1. Any mental illness is a mental, behavioral, or emotional disorder. It can vary in impact, from no impairment to mild, moderate, or severe impairment. 2. Serious mental illness is a mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities. 3. Parties that suffer from a serious mental illness do not generally have access to services to assist them through a moment of instability, during the adversarial process. Historically, this has been an unwelcome or uncomfortable conversation in the justice process. 4. Those outside the mental health community will often talk about happiness as a choice. Often, we treat those with a physical illness very differently than how we treat those with a mental illness.

Promoting Mental Wellness in Justice

There are three main pillars that should be considered to promote and support mental wellness for parties in family cases. They include: access to justice; procedural fairness; and accommodation. These have also been memorialized and urged in a Resolution from the Conference of Chief Justices (CCJ). 

The entire handbook may be found here.

Kristi Thompson is the Assistant Director of the  Texas Dispute Resolution System, Office of Dispute Resolution, in Lubbock, Texas.



Additional articles by Kristi Thompson
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., CollabLaw.com or of reviewing editors.
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