Stop Asking About Mental Health

Michigan’s State Court Administrative Office took some steps recently to align mediation rules regarding parties’ mental health with the federal Americans with Disabilities Act (ADA). Mediators were previously encouraged to screen for mental health issues that might contribute to domestic violence, as part of the Domestic Violence Screening Protocol. For example, in assessing a party’s ability to negotiate, the Protocol used to recommend that a mediator ask a party, “Do you believe mental health (illness) issues or emotional problems have ever caused difficulties for either of you?” (Section 6). That question has now been omitted. The Protocol used to suggest “mental illness” as a reason a mediator could give to decline mediation without mentioning domestic violence; that too has now been deleted. (Section H.4.) The ADA – which applies to mediation – protects the privacy of an individual with a psychiatric disability, and leaves disclosure up to that person; it cannot be required. Omitting these questions from the DV Screening Protocol brings Michigan practice more in line with the ADA.

In conjunction with the changes to the DV Screening Protocol, SCAO also revised the Mediator Standards of Conduct. Standard VI, “Safety of Mediation,” used to include “mental illness or other mental impairment” as one of several examples of an impediment that would make mediation physically or emotionally unsafe for any participant. That phrase has now been deleted from the Standard.

I served on the SCAO-convened committee to update the Mediator Standards of Conduct in 2011-2012. At that time, Michigan’s Standards of Conduct were just two pages long, and did not address domestic relations mediation. There were ABA Model Standards of Conduct for general civil mediators, and Model Standards for Family and Divorce Mediation, so we decided to merge the two into one set of standards that would cover all types of mediation. What is now Standard VI, Safety of Mediation, is the sole provision that had no corollary in the ABA Model Standards of Conduct; while the “safety” concept came from the family mediation standards, they contain no mention of mental illness. Omitting this phrase lines up the Michigan standard with other national standards. The Association of Professional Family Mediators Standards of Practice permit a mediator to suspend or terminate the mediation, among other reasons, “when a participant is unable to participate due to … a debilitating physical or mental condition.” (Standard X.A.3) That seems less intrusive than asking about mental health  ahead of the mediation.

Although the screening protocol was designed for domestic relations cases, it’s a wise practice to use it in every case. Skipping the questions about mental health will take some adjustment but will better respect the privacy of parties to mediation.