Got meds?

Is this a legitimate question to ask someone at a mediation?

That's a question tackled by Perry Itkin. Mr. Itkin references an article in the National Law Journal pointing out that, because of the number of Americans taking medications, jury consultants are starting to ask jurors about their medication usage.

Did you take your meds today?

Mr. Itkin notes that the Florida Rules for Mediators provides that, if a party is unable to freely exercise self-determination, a mediator shall cancel or postpone the mediation. The mediator is also to adjourn or terminate the mediation if any party is unwilling to participate meaningfully in the process.

As professional mediators, what role do we have to inquire as to the mental or psychological state of a party? Should we ask if they are on medications? Or if they should be on medications? How, as a neutral, do we evaluate if a party is free to exercise self-determination?

The Association for Conflict Resolution, the American Arbitration Association, and the American Bar Association adopted Model Standards of Conduct for Mediators. Under those model standards:

• "A mediator shall conduct a mediation based on the principle of party self determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise
  self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes." (Standard I. A.)

Standard VI.A.10 states:

• "If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination"

What do you do to make sure that the parties don't have a difficulty comprehending the process, issues, or settlement options, or participating in the mediation when it comes to a party's psychological condition?