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Arbitration, Mediation, and Psychoanalysis

Arbitration and mediation are allied processes that have expectable similarities, but also distinct differences. Unexpected parallels emerge when both are compared to psychoanalysis.

First, some definitions. Arbitration is the process whereby previously unresolvable disputes between or among parties are resolved by an arbitrator who is agreed upon by the parties and has the authority to decide the submitted issues once the process has been concluded. The arbitrator (sometimes more than one, often a panel of three) presides, frames one or more issues with the help of the parties, accepts and hears evidence, receives briefs, rules on motions introduced by the parties, arrives at a decision binding upon both parties, and issues a written opinion. The parties are often represented by counsel but need not be. The arbitrator is often a lawyer but is not necessarily one. Concluded arbitrations are seldom the subjects of court appeals, and very few of those that are appealed are overturned.

Mediation is an effort to resolve previously unresolvable issues between parties by enlisting the services of one or more mediators who attempt to guide the parties to a mutually agreeable resolution. The mediators lack the power to impose a resolution. The purpose of mediation is to evolve a solution that, while possessing elements that may be unsatisfactory to one side or the other, both sides can live with. Thus, the guiding principle is compromise - give some, and get some. Compromise is facilitated by a mediator who gives both parties ample opportunities to express their feelings as well as to present evidence and arguments.

A mental health professional is one who recognizes the importance of affect (feelings) as well as of cognition (thoughts), Mental health professionals are trained to assist clients to understand themselves and others better. The process is generally referred to as psychotherapy or psychoanalysis, but other terms (e.g., counseling) may be used. The professionals, particularly when they refer to themselves by legally protected titles (psychiatrist, psychologist, social worker, and in some states, variations, such as marriage counselor) are either certified (social workers) or licensed (psychiatrist or psychologist) by the particular state. But many professionals lack certification or licensure, and may be as well qualified, or even more qualified than those who have been so designated. This is so because legal qualifications alone generally cannot insure the necessary expertise, best obtained by training in one of the three disciplines and in either a psychotherapeutic or psychoanalytic institute. The mental health field, which attempts to deal with irrationality in its many manifestations, is itself infected with inconsistencies, complexities, and considerations (for example, political, reflecting economic concerns or "turf') having little relevance to what we would assume would be the principal purpose of mental health efforts: assisting the public to receive the most cost-effective and quality mental health care.

Unlicensed or uncertified professionals may include nurses, graduates of counseling programs unrecognized by the three formal disciplines, clergy, teachers, indeed any who have been trained in other fields, find work with clients challenging, and have proved themselves capable of making a significant contribution to the field of mental health. Entry by such persons into the field is generally via a psychotherapeutic or psychoanalytic institute. Some of these institutes provisionally accept persons who lack formal preparation for it. Thus, there are the recognitions that: the public generally is best served by an accreditation procedure that utilizes formal educational credentials (as examples, degrees of M.D., Ph.D., Psy.D., Ed.D., M.S.W., M.A., or M.S.), legally protected designations (psychiatrist, psychologist, and social worker), and evidence of having successfully completed a recognized (with the difficulty that which person or group does the recognizing is a matter of contention) psychoanalytic or psychotherapeutic institute; sometimes credentialed persons, with a protected designation, who have completed recognized institutes may not measure up to the quality one would wish; sometimes uncredentialed people, without a designation, who have not completed a recognized institute may do quite well. In the final analysis, the fit between a particular giver of care and a particular receiver of care is critical. There is little we can do to predict the goodness of fit. A trial session or two is often the best way of measuring how well the parties will get along.

My method of determining fee (and schedule, also mutually determined) introduces the functions of arbitration and mediation. Parties who have been unable themselves to work out matters of mutual concern may elect, either to leave to a third party (an arbitrator) the resolution of their differences, or to seek, with the professional assistance of a mediator, a method of harmonizing their differences and emerging with a mutually agreeable settlement. Such settlement generally has disadvantages as well as advantages.

One disadvantage is that both parties are less likely to be as happy with the settlement as they would be if the third party made a decision more clearly favorable to A than to B. In this case, A is likely to be happy, B unhappy. Another disadvantage is that, as is the case with most accomplishments, they consume time and require work.

The advantages probably outweigh the disadvantages. The advantages include an outcome that is more economical financially if the alternative is a legal procedure, and likelier to involve less bitterness since in the process of learning how to converse (comprising meaningful listening to the other party and hence trying to understand the position of the adversary, as well as advancing one's own positions), parties typically come to feel less estranged from one another and may, in fact, begin to respect one another more than they have in the past--even though they may continue to disagree. The mediator assists the parties to start conversing, mentions items crucial to an agreement that can withstand future contingencies (possibilities neither party may have anticipated), and introduces legal considerations. In the latter respect, an agreement formulated with the assistance of a non-lawyer mediator or even with a lawyer-mediator is best submitted for final approval to a lawyer specializing in such agreements. It is not necessary for each party to have a lawyer review the proposed agreement.

The principal advantage is that working things out themselves not only defuses potential emotional incendiary devices but leaves the parties communicating and empowered via having acted responsibly and mutually.

Arbitration, leaving, the decision to a dispassionate third party, has the advantages of avoiding lawyers' expenses and disposing of the matters in dispute expeditiously, has the shortterm benefit of avoiding the work of producing a settlement, but has the longer-term disadvantage of leaving the parties uninvolved and therefore unempowered. The arbitrator has each party present its side of the outstanding issues (including documentation and testimony), and investigate the claims of the opposition (including via cross-examination). The arbitrator may entertain briefs, and then issues a decision (which may include reasons therefor) binding upon both parties. While there are possible grounds for setting aside the decision in a court of law (primarily for reasons of fraud, unfairness, or ignoring applicable law), the outcome generally withstands challenges.

The contribution of psychoanalysis to both mediation and arbitration is the recognition by the therapist of vital emotional issues that may remain unrecognized or be considered irrelevant by nontherapists. Consideration of less factual issues may have the effect of enabling the parties to have considered by the mediator or arbitrator more central issues that would affect the deliberations and the aftermath of the decision. An example would be the stripping away of the monetary considerations from the needs to conceal the feelings and underlying attitudes the monetary considerations mask. A therapist may be able to expose the core feelings in a safe way, enable the parties to own these emotional features, and facilitate their dissociation from the framed issues. Finally, the therapist will attempt, in sessions with the parties (Joint sessions augmented, if considered desirable, by sessions with each of the parties individually), to enable them to accept the outcome with fewest reservations.

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