Avoiding Labels and Enhancing Access to Justice: Rethinking Approaches to Trauma and Mental Health
This presentation aired on September 10 and was originally co-sponsored by the American Bar Association Dispute Resolution Section Court ADR, Client Representation, Ethics, Mediation, Technology, and Women in Dispute Resolution committees. In it Dan Berstein shares his personal lived experience of childhood trauma, mental illness labels, hospitalizations and restraints, public attacks, and conflict-resolution-inspired advocacy to help bring home the impact of stigmatizing labels even when they are non-clinical terms like “difficult,” “toxic,” or “high conflict.” He also shares free and grant-funded resources to manage distress, de-bias our approaches, become trauma-informed, be accessible, and form consistent, effective challenging behavior responses.
Below are some other programs and resources Dan Berstein has prepared for the American Bar Association:
Online Presentations
Cultivating Civility and Preventing Liability: Focus on Disabled Clients and Coworkers
(June 2024 ABACLE Program)
Our panel of experts will discuss civility as it relates to how attorneys interact with both coworkers and clients with disabilities. The panelists will also explore examples of preventable misconduct that can potentially expose law firms to liability for discrimination. Finally, our experts will share a model for civility that includes appropriate boundaries so law firms can address challenging behaviors without inadvertently discriminating against people with disabilities.
Meeting Equity and E-mail Equity
(October 2023 Equity Summit Hosted by the ABA Diversity and Inclusion Council)
Did you know that people are unintentionally discriminating against folks every day just based on how quickly they respond to emails from different people, how much information they include in their replies, and how friendly their tones are? And that the way we set up our virtual meetings may inadvertently add barriers to people from marginalized groups? Join us to receive tools to make email practices and meetings more equitable and accessible to people from a variety of diverse backgrounds. Learn ways to engage in overwhelming-seeming conversation topics related to diversity and adversity. This promises to be an engaging and interactive session with speakers who will share some personal examples before disseminating free tools you can use to achieve E-mail Equity, Meeting Equity, and Engagement Equity.
How You Can Prevent Inadvertent Discrimination in Dispute Resolution
(December 2022 Dispute Resolution Section Webinar)
Did you know you might accidentally be discriminating in how you send e-mails? Join two published experts who will share data on how bias affects even the smallest aspects of your dispute resolution work practices, and the negative effect it has legally and ethically. They will also give you tools to help you notice disparities, address them, and prevent them in the future.
Bias In Your Inbox: Tools for Equitable E-mail Communication
(October 2021 ABACLE Program)
Bias is everywhere, including in our inboxes. Studies show that the way people respond to e-mails may be different based on their implicit biases toward race, gender, disability, and more. E-mail automatically creates an objective record of disparities, yet people often are not careful about ensuring they are e-mailing in ways that promote equity and inclusion and do not expose them to potential liability for discrimination. Our interdisciplinary panel of experts will discuss types of e-mail disparities that are relevant for lawyers and their clients. They will also share best practices for lawyers to draft and respond to emails in an equitable and inclusive way. All participants will receive a simple worksheet that includes a model for equitable e-mail communication and a checklist to ensure you are responding to messages in an appropriate manner and timeframe. We will share examples, including some related case law regarding discrimination.
Mediator Liability for Microaggressions and Inadvertent Discrimination
(October 2021 Mediation Week Program)
Microaggressions and discrimination often happen inadvertently, and with good intentions. They are so common they have even found their ways into published guidance from our professional associations, law schools, and other reputable outlets. This program will use these examples to explain what microaggressions are, examine their consequences, and share resources for preventing and addressing them.
Integrating Diversity Perspectives Into Our Practices
(June 2019 Dispute Resolution Section Webinar)
All dispute resolvers can learn from diverse perspectives to improve their practices. In this webinar, speakers will highlight ways to incorporate gender perspectives, cultural perspectives, and disability perspectives to make our practices more accessible, sensitive, and inclusive.
Relating Across Mental Health Differences
(2018 Relational Practices Virtual Summit)
MH Mediate founder Dan Berstein delivered a 4-minute crash course on relating across mental health differences as part of the ABA Relational Practices Summit.
Mediating With a Participant Protected by the ADA
(June 2017 – Dispute Resolution ABA CLE)
Mediators work with all kinds of participants, including some who live with physical or mental disabilities. This webinar will explain your responsibilities to a party, lawyer, or other participant with a disability and provide examples of types of accommodations you may consider making so the mediation process works for them.
The program will also explore ways to develop accessible practices, which are designed to be adaptable to people with diverse abilities without requiring a request for accommodations. Plus, you will have a chance to ask questions of two lawyer-mediators who have extensive experience with disabilities and the Americans with Disabilities Act (ADA).
Articles
How Ombuds Can Set Trauma-Informed Boundaries and Manage Distress
(September 2024 Just Resolutions Newsletter)
Despite varying roles, all ombuds encounter people experiencing distress. They therefore can expect parties may be overwhelmed by the situation, by an institution’s practices, and/or by unrelated problems from their outside lives. Yet it can still be hard to feel prepared for their distress, especially when an ombudsperson experiences distress of their own. In my advocacy work, I encourage organizations to update their published guidance material that discriminates against people like me living with mental illnesses. I have engaged ombudspeople at various institutions and I have experienced my own distress from seeing stigmatizing material, from difficult complaint processes, and from my personal challenges managing bipolar disorder symptoms. Sometimes the other parties, including the ombuds, find my outreach distressing (partly because my neurodivergence sometimes leads to fast, long, and incisively critical messages and partly because of the content expressing my pain, disappointment, and anger). Because I am a mediator, these challenges inspired me to collect tools to help all parties navigate distress without writing people off.
On Professional Practice: Preventing Unintentional Discrimination in Dispute Resolution
(January 2023 Dispute Resolution Magazine)
Dispute resolvers who are dedicated to remaining impartial may nonetheless become inadvertent perpetrators of discrimination. Our unconscious biases can lead us to act based on norms or hunches that are inappropriate. In this column, we talk about unintentional discrimination in dispute resolution and describe four procedurally fair ways to prevent harmful mistakes.
Mental Illness Discrimination Breakthroughs at Mediate.com
(October 2022 Just Resolutions Newsletter)
This article reviews challenges Mediate.com faced related to mental illness stigma, and shares how they worked through them to become a leader in convening dialogues on mental health.
How You Can Help Increase the Selection of Diverse Neutrals
(January 2021 Just Resolutions Newsletter)
On August 6, 2018. the American Bar Association adopted Resolution 105 urging dispute resolution providers to increase the presence of diverse neutrals on their rosters and urging dispute resolution users to select diverse neutrals. In 2020, the Diversity Committee was tasked with translating this ambitious resolution into action.
How to Deal With “Difficult Clients” Without Discriminating
(February 2020 Just Resolutions Newsletter)
Dispute resolvers are experts in dealing with all kinds of challenging conflict behaviors, yet too often we lose sight of our duty of impartiality. Many trainings teach practitioners to identify so-called “difficult clients,” to surreptitiously diagnose them as high-conflict, and then to treat them in a specialized way. These trainings mean well but they often lead to inadvertent discrimination.
Books
Mental Health and Conflicts: A Handbook for Empowerment
(January 2022 ABA Book)
This book teaches law professionals and laypeople how to talk about mental health, be accessible to people with diverse needs, and address challenging behaviors without stigmatizing mental illness.
Podcasts
Mental Health and Conflicts: A Handbook for Empowerment
(February 2022 Resolutions Podcast)
Dan Berstein, a mediator with a Master’s of Science in Public Health from Johns Hopkins University, discusses and analyzes the intersection between mental health and conflict or dispute resolution. He founded MH Mediate; a resource for conflict resolution practitioners to develop best practices and processes in developing organizational Alternative Dispute Resolution (ADR) programs that are accessible for and responsive to parties with diverse identities. As a person who lives with a mental health disability, Dan has personal knowledge of the unique issues that face many living with mental health challenges. He describes his experience working as a mediator, as a participant and a party to mediation, and techniques to empower conflict resolution professionals to lead with sensitivity and understanding, in part, through the avoidance of misguided assumptions.
Conference Presentations
Inadvertent Misconduct: Preventing Party Complaints
(2023 Dispute Resolution Section Annual Conference)
This workshop provides tools to help neutrals and organizations prevent and address unintentional misconduct. We will explore how data collection, liability mechanisms, and party education relate to practitioner accountability. Attendees will review case studies of alleged misconduct and receive tools designed to help dispute resolvers prevent problematic behavior and reduce potential liability.
Can I Ask That? The Ethics and Practice of Assessing Capacity to Mediate
(2022 Dispute Resolution Section Annual Conference)
How can mediators ensure party capacity without compromising their impartiality? Historically, many have associated capacity deficits with specific contexts such as abuse, disability, and intoxication. This session will teach mediators how to assess capacity based on observed behaviors without acting on stereotypes based on the party’s situation.
What Dispute Resolvers Need to Know About Mental Health Concerns
(2018 Dispute Resolution Section Annual Conference)
1 in 5 people have a diagnosable mental health problem each year. Are you ready for these issues when they impact your cases? Do you know what to do when a party discloses a mental health diagnosis, when one party accuses another of having one, or when you suspect a mental health issue? This workshop teaches conflict resolvers to become sensitive, accessible, and impartial toward parties with mental health needs. We also discuss lessons learned from a recent AAA-ICDR Foundation project providing mediation skills training to peer specialists living with mental illness.
Building a Reflective Practitioner Group: A Tool Kit for the Reflective Practitioner
(2017 Dispute Resolution Section Annual Conference)
For years, folks in our field have thought about ways to improve the quality of dispute resolution practice. Last year, the Section’s Mediation Committee introduced its Reflective Practitioner Group (RPG) for mediators to share experiences and insights, help address the angst and loneliness of being a mediator, and increase mediator skills and effectiveness. The Committee set up a monthly RPG call available to its members and this session invites people to consider RPGs in developing the tool kit necessary to support them.