We commonly think this about our counterparts in conflicts. Unfortunately the statistics about mental illness in the USA are such that we may not be wrong. A study just released by the Substance and Mental Health Service Administration states that nearly 20% of adult Americans “experienced mental illness in the last year.” Of that number less than 40% received treatment. Clearly not all mental illness is the same. And, plenty of people suffering from mental illness have their illness under control with medication and therapy and can operate in ways we would all understand to be rational. But the numbers are still serious enough that we can’t ignore them or assume that everyone we work with as counterparts, lawyers, and clients are mentally healthy.
The percentage of people with mental illness also varies according to age and gender. According to the SMHSA study, thirty percent of 18-25 year olds suffered from mental illness in the last year, while only 13.7 percent of those over 50 suffered (age does have its advantages). And, 20% of the nearly 20% of Americans who suffer from mental illness also suffer from substance abuse.
When I teach negotiation and client interviewing and counseling I make the point to my students that their counterpart or client might be suffering from mental illness and we discuss various mental illnesses and how they could influence the interaction. Other studies have discussed the higher rates of depression among law students and lawyers, and the higher rates of substance abuse among lawyers. The challenge is to distinguish between people we dislike or find difficult and those who are genuinely mentally ill.
To take a closer look at this recent report see http://oas.samhsa.gov/NSDUH/2k9NSDUH/MH/2K9MHResults.pdf
Given the prevalence of untreated mental illness, I think advising students about how such illnesses may “influence” their interactions with clients and opposing counsel is critical. As I have learned in several law school courses, an essential element of effective advocacy is the ability to understand what people think and why. Without understanding the “why,” attorneys may struggle to identify the underlying interests of both parties and, therefore, they may be unable to craft creative solutions to their client’s problem. While I agree with Jennifer that disclosure is unnecessary and should be avoided, a general understanding of how to act when one suspects mental illness can be an important tool for many advocates.
After reading the methodology of the SAMHSA study, we need to be careful about reading too much into the results quoted in the original post.
The study uses a very impressive sampling methodology, and the mental health data were collected by clinical professionals interviewing a sub-sample of respondents. The clinical interview used was an adapted version of the Structured Clinical Interview for DSM-IV-TR Axis I Disorders.
All of that indicates that the study is very robust; however the definition of “any mental illness” is _extremely_ broad: “Respondents were defined as having any mental illness if they were determined to have any of the mental disorders assessed in the SCID, regardless of the level of functional impairment.”
The clinical interviewers did identify the level of functional impairment, but this distinction is not included in the final report. We have no way of knowing how many of the 20% of adults identified with “any mental illness” have low or moderate functional impairment. An individual with low or moderate functional impairment may be indistinguishable from the general population in normal interaction. Therefore, the conclusion that 20% of our potential clients or counterparts might be mentally ill to the degree that it would affect our interactions with them is not warranted by these data.
Moreover, I am not comfortable with viewing potential clients or counterparts through a DSM-IV lens. At first blush, it seems compassionate to “distinguish between people we dislike or find difficult and those who are genuinely mentally ill.” I agree that we must put ourselves in other’s shoes in order to better understand them. However, unless we have proof of clinical diagnosis, should we really be distinguishing who is “genuinely” mentally ill and who is just being difficult or irrational? Would we really treat them differently, anyway? That may produce an unintended hierarchy, where we divide others into categories depending on the degree that we find their behavior justified by a hidden mental illness. That seems a dangerous road to travel.
If general awareness of mental illness helps us be more compassionate in our interactions with clients and counterparts, I support it. However, we shouldn’t take the idea much further than that. We need to take our clients and counterparts at face value, treating them with the same respect and understanding regardless of their behavior.
I think that this plays a big part in client interviewing. Attorneys can never assume that their client is 100% competent, and should take time to “feel them out” to determine if their client is in a competent state of mind. This will affect how attorney’s view their client’s objectives, what their client is telling them and where to proceed from there.
I agree with Michael that most of the time those with mental illness failed to seek treatment because of the fact that they have a hard time recognizing that they do in fact have a mental illness. As a lawyer, you simply cannot ask your client whether he or she has a mental illness at the beginning of your interview, because that would be both awkward and you might not receive an accurate response. You may have to wear the hat of a psychologist and determine for yourself whether your client is experiencing signs of a mental illness, and whether that is affecting what your client is telling you.
I agree with the previous posts that the true “challenge is to distinguish between people we dislike or find difficult and those who are genuinely mentally ill.” In the midst of a conflict, when we are so deeply entrenched in our own position and arguments, it may be easy to dismiss the other side as irrational or even mentally ill. This dismissal makes it easier for us to justify our own firm stance, which may seem just as irrational to the party on the other side.
Perhaps there should be less focus on whether a person has mental illness and more focus on understanding his or her underlying interests in a dispute. As Jessica related in her anecdote regarding the woman who wanted to return “home” to begin preparing for the Queen’s and President Clinton’s visit, the woman’s concern was real. The fears, concerns, and anxieties of those with mental illness are as real as those of a person without. Mental illness may be an aspect of someone’s personality, but it does not define who that person is. Instead of focusing on the presence of a diagnosis, we may be better off focusing on what parties truly want and need and then finding ways to make both parties happy.
Disclosure of mental illness, be it severe schizophrenia or mild depression, has no place at the negotiating table or arbitration hearing. The legal system is rife with stereotypes about those suffering from mental illness (just look at how courts have interpreted the Americans with Disabilities Act in regards to those with mental illness), and disclosure of such conditions, as Gina pointed out, may affect how that party is treated.
The example of irrational behavior that comes to my mind is the kind of behavior exhibited during divorce proceedings. Couples going through an acrimonious divorce often exhibit some of the most erratic behavior imaginable. Granted, these people are definitely stressed and maybe even somewhat depressed, but this behavior is more often related to hurt, anger, and vindictiveness. These couples, however, do not suffer the stigma of mental illness: they are not dismissed, talked down to, or brushed aside, rather their representatives fight for what they are demanding (even though they might be occasionally rolling their eyes while doing it).
Ultimately, instead of focusing on why parties are acting a certain way, it may be more beneficial to focus on what each party truly wants or needs (however irrational) and find ways to address those needs for both parties in the most “rational” way possible. Our job as attorneys is to be objective and provide some detachment so we can have a clear view of how to arrive at a resolution.
Also, I think that so much of the issue is recognizing how our reaction to someone with mental illness affects the interaction as well. Even after we recognize that a counterpart has a form of mental illness, are we able to move beyond the stereotypes and assumptions we have about how the mental illness may or may not affect the other person in a negotiation or interviewing/counseling session? Sometimes a person’s mental illness is not as much of a factor in the interaction as the other person’s (mis)perception and response to it is.
As a young law student, I have grown to appreciate my background in psychology. Having volunteered my time to less fortunate individuals, it is evident that certain disputes are the result of mental illnesses and that the outcomes are heavily influenced by those diseases. Making it a point to discuss the role of mental illness in client interviews and negotiation could prove to be very important for attorneys who offer their services to less fortunate individuals in both the pro bono context and as a career. However, you correctly note that the “challenge” is recognizing the difference between those who are truly ill and those who are not. My brief experience in psychology tells me that of the forty percent who did not receive treatment, nearly all failed to seek treatment because they themselves had a difficult time distinguishing between the natural hardships of life and an unfortunate predisposition.
I found the last sentence of this post to be the most important: “The challenge is to distinguish between people we dislike or find difficult and those who are genuinely mentally ill.” I have worked with mental illness commitments, and am constantly struck by just how difficult it can be to tell the difference. A routine scenario is one in which an individual with schizophrenia will take medication, feel better, and then quit taking the medication. At a recent medication hearing, a schizophrenic man was given the opportunity to speak on his own behalf. If we had not been in a hearing room, and if I had not known that this man had a very long history with schizophrenia, I would have believed everything he was saying. He was articulate and seemingly very rational, someone I could have had a reasonable conversation with. It occurred to me that if I ran into him on the bus, I would never know he was mentally ill. I would probably rationalize away his odd behavior. On the other hand, I have seen mentally ill individuals in court who were absolutely hysterical. They didn’t want to work with their attorney, the judge, or their caregivers. I had the opportunity to see one of these individuals after he had been taking his medication for two months. Lo and behold, he was still rude, abrasive and grating. He still refused to work with others. We had attributed his poor behavior in court to his mental illness. Instead, that was just his personality.
With this perspective, I struggle with the true merits of knowing whether your adversarial party or negotiation counterpart suffers from mental illness. As illustrated in the above examples, there is a tendency to attribute all of a mentally ill individual’s words and actions to their illness. This ignores the fact that all people are sometimes difficult to work with, and all people sometimes do and say things that are irrational. Being able to fall back on, “Well, it’s their mental illness talking,” may pose a real impediment to seeing that a person may have a legitimate objection to your point of view that is rational and not based on an illness.
On the other hand, I think there is always considerable value in being able to understand someone else’s point of view. We talked about this in our ADR class in terms of getting to the underlying interests behind the positions. I point out one final example, this time a case involving a woman who has suffered from dementia for decades. Her case was in court on an annual review to determine whether she should stay in the same nursing facility that she has been in for years. Her guardian ad-litem stated that he had no idea why she was requesting to go home to a house that no longer existed. When the judge asked the ward’s counsel why she was requesting to “go home,” counsel said, “Well, she is perturbed because she has invited the Queen of England and Bill Clinton over for dinner, and she needs to start preparing.”
The judge looked back to the guardian ad-litem for a moment, and then said, “What do you mean you can’t figure out why she wants to go home? That’s the best reason I’ve heard yet.”
On that note, I think the best approach is to be aware of the possibility of a mental illness at play, without using it as an easy answer for why you can’t understand your counterpart.