Solving Drug Issues in Mediation

October 1, 2012 · Filed Under Mediation - General · Comment 

In my previous post we supposed a partnership conflict in which Jim insists upon terminating Dan’s partnership share because Dan’s sales team has been losing customers and have revealed that Dan is using cocaine and methamphetamine. Caught out, Dan has admitted his conduct, agreed to a psychiatric exam resulting in a diagnosis of “drug abuse disorder” (see previous post for details) As the mediator you will be more helpful if you know a few basics. There is a difference between drug abuse disorder and addiction, or as it is called in DSM IV (Diagnostic and Statistical Manual latest, edition) “substance dependence”.

The former is characterized by distress within a 12 month period as manifested by one or more of the following: recurent use resulting in failure to fulfill a major role or obligation; recurrent us in situations in which is is physically hazardous to do so; recuring use related legal problems; or continued use despite persistent or recurring social or interpersonal problems.

Addiction or substance dependence is an uglier monster. It is defined as a maladaptive pattern of use leading to clinically significan impairment or distress as manifested by three of the following within a 12 month period: tolerance, meaning the increasing need for more to achieve the same intoxication level or diminished effect from the same amount; suffering typical withdrawal or using a drug in order to avoid withdrawal; use in larger amounts or over a longer period than intended; a persistent desire without success to cut down or control the use; a lot of time is spent obtaining the drug, using it, or recovering from its effects; important activities are given up or reduced because of use; or use is continued despite knowledge it is causing physical or psychological problems.

In open session you ask if there is agreement between the parties on the meaning of what the doctor reported. Jim says: “The guy is addicted. I’m sorry, but meth addiction is permanent. He might get treatment but I would never know whether he might start using again and cause the company some serious damage.” What about you Jim, do you agree? “No, I am not an addict. I know I shouldn’t have been using when it interfered with my job, but I am not going to do that anymore. The doctor opened my eyes.” Knowing what you know about the differences you can pursue this issue further in separate caucus. You don’t want to correct Jim in front of Dan and look like you are taking sides. In caucus you might say: “Jim, I believe the medical profession has a different vies of Dan’s problem. I don’t take Dan’s side here, but unless I am mistaken you will likely find on further inquiry that Dan’s abuse is not addiction and that it is very treatable.” It might be necessary at this point to adjourn for further investigation of the nature of Dan’s problem. Hopefully, the doctor’s report recommends specific methods of treatment. During open session Dan commented: “If I have to, I will start attending Narcotics Anonymous. That should end this whole discussion”. Notice the words: “If I have to….” They indicate that Dan is feeling coerced toward treatment. Studies have shown that the N/A 12 step program does not have a high level of success in treating coerced patients. What little data there is suggest a high drop out rate for coerced patients very early in the process and not a high rate of completion for those who stay longer. You will not want to tell Dan his idea is no good, but a better solution might be for him to meet with the doctor for a specific discussion of treatment options and their success rates.

Meth and cocaine users can quit on their own without treatment and a high percentage of meth abusers are successfully treated. Jim should take this into consideration. An agreement that would keep Dan aboard might include a period of time when Dan stays out of the business for a period of weeks while he gets treatment and demonstrates through testing that he has achieved sobriety, followed by a schedule of testing. If such a famework could be agreed to, Jim can be protected with contractual clauses concerning Dan’s compensation and profit sharing during these periods and at certain check points thereafter. Depending upon the severity of the situation and Dan’s demonstration of determination to get and stay sober, there are any number of possible negotiated arrangements to protect Jim and the business and to keep Dan’s valuable talents as well as to restore the erstwhile good relationship between the partners.

Dan’s problem was abuse disorder. The medical profession calls addiction “substance dependence”. Addiction, in other words, is not a mere disorder, it is a brain disease. It is however treatable. Confronted with an addiction problem in mediation the mediator must be careful not to speak of “dependence” in the same way s/he might about abuse disorder. Without a professional medical diagnosis the lay person should not toss these terms around or make assumptions about what is needed either in treatment or in crafting a dispute resolution agreement that deals with the issue. I strongly recommend that the parties be urged to obtain a definitive assessment and treatment recommendation from a specialist, before attempting to arrive at a final agreement, unless the economic/legal ramifications in the particular circumstances would not be materially affected by a mistaken diagnosis.