Abstract
With mediation becoming a means of adjudication in employment, family, consumer, and business practices, it is confronted with concerns about fairness and the commitment to the self-determination of parties. Mainstream treatment is based on neurotypical criteria of communication, which systematically disadvantages the not-so-uncommon 15-20 percent of the population who are neurodivergent. This paper examines how standard mediation practices, including those related to eye contact, rapid verbal processing, and long-term face-to-face meetings, exclude people with ASD, ADHD, or related neurodevelopmental disorders. In light of disability rights issues, new reports from practitioners and cognitive science research, this article aims to redesign mediation from a neurodiversity perspective. The paper emphasizes that being inclusive of people with different neuro-disabilities is not only a legal obligation under the current disability that being inclusive for neurodiverse participants is not just a legal obligation under current disability discrimination statutes, but it is also a fundamental aspect of the due process of procedural justice. By reviewing existing procedures and policies, as well as specific ways in which ADR institutions themselves have worked to create a welcoming environment for individuals who think differently, this article adds to the nascent field of neurodivergence-informed ADR by highlighting key questions/research needs that need attention now.
- Introduction: The Invisible Architecture of Exclusion.
Modern rhetoric on ADR often promotes mediation as a more convenient, adaptable, and humane alternative to traditional litigation. Advocates stress that mediation can empower parties, respect their autonomy, and deliver outcomes that respond to their unique needs, rather than being constrained by rigid legal categories. But this glamorous narrative hides a more disturbing reality: the very structure of mediation processes systematically marginalizes or puts at a disadvantage a significant proportion of potential participants whose neurological processes do not conform to social norms. The Centers for Disease Control and Prevention (CDC) reports that in the United States, about one in 36 children has been diagnosed with autism spectrum disorder (ASD) since 2024[1], a significant increase from just two years ago. The prevalence rate for attention deficit hyperactivity disorder (ADHD) is even more dramatic, with seven million children between the ages of three and 17 years diagnosed with ADHD in the US (11.4 percent of the population) according to data from the National Survey on ADHD in 2022[2]. The prevalence is 15 percent for boys and 8 percent for girls. These statistics refer only to diagnosed cases. Furthermore, fifteen to twenty percent of the US population is neurodivergent, not just ASD and ADHD, but also dyslexia, dyspraxia, Tourette syndrome, and others, which are defined by divergent neurological functioning. Notably, a significant number of adults are not diagnosed, especially those who have developed coping mechanisms or whose symptoms were not identified in childhood, with 2022 CDC estimates indicating that 2.2% of adults in the US are autistic, which experts think is an underestimation of actual prevalence because of historical underdiagnosis, especially in women and people of color.
These are epidemiological realities with far-reaching implications for the settlement of disputes. People with a neurodivergence are increasingly involved in mediation in a wide range of settings, such as employment disputes involving claims of discrimination, family mediation involving custody arrangements in which one or both parents have a neurodivergence, school disputes over special education and Accommodation, and consumer and business disputes resolved by online dispute resolution services. Resolutions involving autism more than doubled from 0.4 percent of the total EEOFC resolution in 2016 to 1.5 percent in 2023[3], while resolutions involving other neurological disorders increased from 3.2 to 4.2 percent over the same period. Most of these conflicts are mediated; however, as mediation becomes more popular, the practice has not critically examined the underlying assumptions of mediation in terms of communication, cognition, and social interaction[4].
Thispaper states that conventional therapeutic practices are based on a neurotypical framework that favors certain cognitive and communication styles and precludes others. The emphasis on eye contact as a sign of trust and engagement, the demand for rapid verbal processing and real-time responses, the use of implicit social cues and non-structured communication, and the sensory intensity of traditional settings for mediation combine to create what disability scholars call structural affirmativity. Although these design elements appear neutral, they are systematically beneficial to neurotypical participants and create barriers for neurotypical individuals. If the mediator perceives the lack of eye contact by the autistic participant as a sign of disrespect, or a processing pause as confusion or sensory overload, the so-called neutral facilitator becomes a negative mechanism[5]. Moreover, this disadvantage operates invisibly. Unlike physical accessibility barriers, which are easily perceived, cognitive and communicative barriers are not easily perceived by mediators. A large body of literature on mediation skills, techniques, and ethics makes virtually no reference to neurodiversity, thus demonstrating the disconnect between legal requirements in models of disability discrimination and practice. Recognition and Accommodation of the specific needs of neurodiverse individuals is a channel for developing a more balanced and productive conflict-resolution environment; however, recognition is still in its early stages[6].
The paper is divided into five sections. Part II examines the legal and ethical context of disability accommodations in mediation, exploring how the Americans with Disabilities Act and the moral requirements of the mediator create both requirements and uncertainties. Part III highlights the neuronormative assumptions inherent in traditional mediation practice and demonstrates how standard protocols disadvantage neurodiverse participants. Part IV presents a review of emerging practices in the field of neurodivergence, highlighting promising solutions but noting their preliminary nature. Part V addresses the complex issue of Accommodation versus procedural fairness and raises the issue of advantage versus access. The article concludes by stating that research gaps are critical and that mediation practice needs to be transformed to fulfill its aspirational promise of accessibility and self-determination.
[1]Matthew J. Maenner et al., Prevalence and Characteristics of Autism Spectrum Disorder Among Children Aged 8 Years- Autism and Developmental Disabilities Monitoring Network, 11 Sites, United States, 2020, 72 MORBIDITY & MORTALITY WKLY. REP. SURVEILLANCE SUMMARIES 1 (2023).
[2] U.S. Centers for Disease Control & Prevention, Data and Statistics on ADHD (noting ≈7 million U.S. children aged 3–17 have ever been diagnosed with ADHD; 11.4% in 2022).
[3] Melissa L. Danielson et al., ADHD Prevalence Among US Children and Adolescents in 2022: Diagnosis, Severity, Co-Occurring Disorders, and Treatment, 53 J. CLINICAL CHILD & ADOLESCENT PSYCH. 1 (2024).
[4] Id.
[5] Marco Imperiale & Tommaso Davi, Neurodiversity in Mediation, MEDIATE.COM (Feb. 11, 2024), https://mediate.com/neurodiversity-in-mediation.
[6] CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 1, at 11.