Disability, Mediation and Capacity

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Just like anyone else, people with disabilities may find themselves in various disagreements or conflicts in their daily life.  These issues may be directly related to their disability or the person may find themselves at a disadvantage because of them.  They may have tenant issues, problems with service providers, financial disputes, family conflicts, disagreements with neighbours, employment issues or difficulties with government services. 

Many people turn to mediators as a way to have a neutral person facilitate a conflict resolution process with the other party.  Unfortunately, it is not uncommon for there to be a misperception or assumption that the mediation process will not work for someone with a disability.  There may be assumptions around capacity, ability to participate and ability understand. 

However, a skilled mediator can make mediation accessible and shape it to fit the person with a disability without compromising their neutrality. 

Accommodation requires the mediator to think ahead and to try and anticipate the ways in which the individual will require adaptions throughout the process.  Someone with mobility impairments may need to be accommodated through changes to the physical space or they may not be able to attend at a traditional office.  Those with visual impairments may require translations into Braille or text to speech technology.  Individuals with hearing impairments may benefit from modified speed and volume of speech or may prefer written or visual communication.  An interpreter may be a helpful addition to the process.  Taking the lead from the individual, the mediator can make adjustments ultimately benefitting both parties with the opportunity to participate effectively in the mediation and resolve their conflict.  

Accommodating those with intellectual disabilities or autism can require more creativity, problem solving, research and training on the part of the mediator.  It may take more time for the mediator to understand the individual and their unique way of expressing and receiving information.  For these individuals, questions around capacity may arise.  Capacity can be such a vague term.  However, in the case of mediation capacity refers to the individual’s readiness to participate. This may be different than legal capacity.  What it really comes down to for the mediator is determining what needs to be done and ensuring the person can fully participate.

In some cases this may mean the individual needs to bring someone with them who can assist them to participate in the process.  In British Columbia this brings up the participation of someone named in a Representation Agreement.  An upcoming article will delve more deeply into the subject of Representation Agreements in mediation.  The simple version of this is that the individual with a disability may need to bring their Representative (often a family member or friend), in order to participate.  This can bring up issues for the other party in that they may then be interacting more with a person with whom they do not have a direct conflict.  The other party may feel there is an imbalance because it may feel like two against one.  Managing perceived or real imbalances between the parties is a key skill a mediator must possess.  All parties must feel safe, heard and understood throughout the process. 

Many positives can come out of mediation for a person with a disability.  It can provide an opportunity to resolve conflict, to learn conflict resolution skills for future use and to help them to take ownership of decisions that affect their life through meaningful participation.  In more general terms, being able to participate effectively in mediation may also contribute to challenging perceptions and assumptions others have or the individual may even hold about themselves.   With experience, research and feedback from others an inclusive process is absolutely realistic.

Get in touch to learn more about how mediation can be an inclusive process for you or someone you support.

lori@lorifrankmediation.com

250-516-4234