In 2010 Mariah Carey unsteadily walked onto the stage at the Palm Springs International Film Festival to accept an award. The audience suffered through five minutes of slurred speech, incomplete sentences, references to inside jokes no one was privy to, and ramblings on about completely unrelated topics. Perhaps Mariah’s only saving grace was she acknowledged in the moment that she was drunk, and she exercised a little self-deprecation by laughing at her own intoxicated state.¹
Mariah Carey is not alone in the category of celebrities who probably wish they could erase their moments of high visibility impaired behavior from our memories. In 2014 a drunk Emma Thompson took the stage at the Golden Globes to announce a winner. Perhaps the martini she carried explains why she forgot to bring the envelope and why she was carrying her shoes over her shoulder.²
Impaired During Mediation
Although the above scenarios may be entertaining and create fodder for the media, it is no joking matter when a party shows up to mediation intoxicated. This happened to me last week in a Zoom mediation. Over the past eight years, I have had a handful of individuals show up to mediation inebriated and on a few occasions I’ve suspected that one of the parties was high.
Although it is more difficult to identify someone as being drunk on Zoom versus in person, in my case last week there was no question in my mind. The wife was slurring her words. She kept forgetting her thoughts mid-sentence. And when she moved off camera a few times, I suspected she was taking a drink.
Upon reconvening after an unusually early break in the mediation for her to take a “bathroom break” it was apparent to all that the woman was so intoxicated she was incapable of – or incompetent to – continue with the mediation. I spoke with her attorney in private and she agreed. I adjourned the mediation and rescheduled an in-person mediation for a future date. I am hopeful the wife will not show up intoxicated. Her attorney and I both told her we will not proceed with the mediation if she does.
Drinking and Divorce
A team at the Research Institute on Addictions at the University at Buffalo followed 634 couples through the first nine years of their marriages. Interestingly, the study³ found that when only one spouse was a heavy drinker, which they defined as drinking six or more drinks at one time or drinking to intoxication, the couples had around a 50 percent higher divorce rate than other couples. Couples who both drank heavily had a divorce rate on par with the general population, around 30 percent.
The research team documented their surprise over the outcome that the divorce rate for two heavy drinkers was no worse than for two non-heavy drinkers. “Heavy drinking spouses may be more tolerant of negative experiences related to alcohol due to their own drinking habits,” researcher Kenneth Leonard said. But he cautioned that this does not mean other aspects of family life are unimpaired. “While two heavy drinkers may not divorce, they may create a particularly bad climate for their children.”
For some, it is easier to deny that their spouse is an alcoholic. The fact of the matter is, if someone displays some or all of the following symptoms of an alcohol use disorder, they are an alcoholic⁴:
- They cannot reduce the amount they drink, even if they’d like to
- They have given up hobbies and leisure time activities in favor of drinking
- They continue to drink, even though it causes problems in their marriage
- They cannot keep up with work or family responsibilities because of their alcohol abuse
- They drink even when it places them in danger or contributes to a health problem, such as high blood pressure
- They show withdrawal symptoms when they are not drinking
- They frequently drink a larger quantity of alcohol than intended or need to drink larger amounts to achieve the same effect
- They talk about craving alcohol and spend a significant amount of time drinking or recovering from being drunk
Managing the Situation
The overarching premise of mediation is self-determination (see below). When an individual is intoxicated or high on drugs, it is highly unlikely they are able to effectively communicate their needs and wants, participate in a productive manner or make rational decisions. It is a delicate subject and of course the party will rarely admit to their incapacitated condition. Therefore, it is critical that attorneys recognize when their clients are unable to exercise self-determination and stop the mediation immediately.
Following an 18-year career in litigation, I have exclusively practiced family mediations for the past eight years. I have helped both attorneys and the parties work through incredibly challenging issues, including tackling custody agreements when one spouse is clearly less capable of properly caring for the children. With my combined experience and expertise I am able to work through the difficult conversations and achieve an agreeable outcome.
Florida Rules for Certified and Court-Appointed Mediators Rule 10.310 – Self-Determination
(a) Decision-making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.
(b) Coercion Prohibited. A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate in a mediation.
(c) Misrepresentation Prohibited. A mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a mediation.
(d) Postponement or Cancellation. If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.
2000 Revision. Mediation is a process to facilitate consensual agreement between parties in conflict and to assist them in voluntarily resolving their dispute. It is critical that the parties’ right to self-determination (a free and informed choice to agree or not to agree) is preserved during all phases of mediation. A mediator must not substitute the judgment of the mediator for the judgment of the parties, coerce or compel a party to make a decision, knowingly allow a participant to make a decision based on misrepresented facts or circumstances, or in any other way impair or interfere with the parties’ right of self-determination.
While mediation techniques and practice styles may vary from mediator to mediator and mediation to mediation, a line is crossed and ethical standards are violated when any conduct of the mediator serves to compromise the parties’ basic right to agree or not to agree. Special care should be taken to preserve the party’s right to self-determination if the mediator provides input to the mediation process. See Rule 10.370.
On occasion, a mediator may be requested by the parties to serve as a decision-maker. If the mediator decides to serve in such a capacity, compliance with this request results in a change in the dispute resolution process impacting self-determination, impartiality, confidentiality, and other ethical standards. Before providing decision-making services, therefore, the mediator shall ensure that all parties understand and consent to those changes. See Rules 10.330 and 10.340.
Under subdivision (d), postponement or cancellation of a mediation is necessary if the mediator reasonably believes the threat of domestic violence, existence of substance abuse, physical threat or undue psychological dominance are present and existing factors which would impair any party’s ability to freely and willingly enter into an informed agreement. (emphasis added)