Mediating the Gap: Thinking About Alternatives to the...

Mediating the Gap: Thinking About Alternatives tothe Current Practice of Civil Commitment

Joel Haycock*David Finkelman"

Helene Presskreischer""

I. INTRODUCTION

Civil commitment represents a natural field of application for theapproach that Professor David Wexler calls therapeutic jurisprudence.When Wexler warns that mental health law has become "sterile" andrisks "d[ying] on the vine!1 in the face of retrenchment both in thefederal courts and in society, the often tired debate over involuntarycivil commitment comes readily to mind. Wexler's argument forshifting the focus of mental health law away from its traditional con-cern with "rights" to one "that exploits meaningful insights from themental health disciplines and allows the law to better serve as a ther-apeutic agent"2 has an especially powerful resonance for an area ofmental health law in which a vast formal expansion of proceduraland substantive rights has led to continually disappointing results.

Reports on the failure of courts to abide by procedural and sub-stantive standards, and regular criticism of that failure from mental

* Joel Haycock, Ph.D., is Assistant Professor in Psychiatry at the University ofMassachusetts Medical School and the Clinical Program Director at Bridgewater StateHospital.

** David Finkelman, Ph.D., is Associate Professor of Psychology at St. Mary's Collegeof Maryland.

*** Helene Presskreischer, Psy.D., University of Denver, is currently Senior SupervisingPsychologist at Bridgewater State Hospital in Bridgewater, Massachusetts.

1. David B. Wexler, Putting Mental Health into Mental Health Law, in ESSAYS INTHERAPEUnc JURISPRUDENCE 3, 5 (David B. Wexler & Bruce L Winick eds., 1991).

2. David B. Wexler, An Introduction to Therapeutic Jurisprudence, in ESSAYS INTHERAPEUIC JURISPRUDENCE 17, 18 (David B. Wexler & Bruce L Winick eds., 1991).

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health and legal scholars, have not appreciably advanced the practiceof rights-based civil commitment. Further, the retrenchment Wexlerwarns against3 has had a powerful echo in the mental health profes-sions, where a number of practicing clinicians experience substantiveand procedural guarantees as destructive of patients' treatment needs,and as misguided, one-sided interference with the treatment of per-sons with debilitating mental disorders. The simple reiteration ofpatients' substantive and procedural rights during a civil commitmenthearing has neither ensured those rights, nor arguably advanced dura-ble treatment relationships necessary to prevent rehospitalization.

Further attack on involuntary civil commitment from the rights-based perspective has long since reached a point of diminishing re-turns: stricter standards, procedurally or substantively, do not inthemselves ensure rights. Training programs for legal advocates donot necessarily do so either Since civil commitment concerns treat-ment relationships between patient and mental health professionals,and how we might advance those relationships while also protectinglegitimate social interests, it is urgent to consider what we knowabout therapeutic outcomes and how that knowledge might inform,reform or replace the practice of hospitalizing persons with mentaldisorders.

Two types of literature exist on the therapeutic effects of thecivil commitment process. By far the largest body of literature con-sists of both professional and mass media material criticizing theimpact of stringent commitment criteria on the care of the seriouslymentally ill. This literature is epitomized by Darold Treffert's5 ge-nial phrase, "dying with their rights on."' Distressed at the inabilityof clinicians to force treatment on thousands of severely mentally dis-abled persons, a number of clinicians and researchers have proposedmodifications of procedural standards modelled on criminal due pro-cess, a shift away from adversarial hearings, stringent due processrequirements, and strict evidentiary standards.7

3. See, e.g., Addington v. Texas, 441 U.S. 418, 422 (1979) (Chief Justice Burger signal-ling willingness to accept lower due process standards for civil commitment).

4. Naomi Leavitt & Patricia L. Maykuth, Conformance to Attorney PerformanceStandards: Attorney Advocacy Behavior in a Maximum Security Hospital, 13 LAw & HUM.BEHAV. 217, 218 (1989). See also Norman G. Poythress, Jr., Psychiatric Expertise in CivilCommitment: Training Attorneys to Cope with Expert Testimony, 2 LAW & HUM. BEHAV. 1,5-18 (1978).

5. Darold Treffert, Dying With Their Rights On, 130 AM. J. PSYCmATRY 1041 (1973).6. Id.7. See Donald HJ. Hermann, Barriers to Providing Effective Treatment: A Critique of

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A smaller number of researchers have examined civil commitmentlaws and procedures in a manner consistent with a therapeutic juris-prudence point of view.' Mary L. Durham and John Q. LaFond in-vestigated the effects of loosening civil commitment standards in theState of Washington, thereby making it easier to commit patients.9

Durham and LaFord found that such changes created a new class ofchronic patients that did not exist before.1° John J. Ensminger andThomas D. Liguori presented a general perspective on the manner inwhich the possible therapeutic effects of an adversarial civil commit-ment hearing could be enhanced or blunted.1

This Article will briefly review the statutes, regulations and caselaw governing civil commitment in Massachusetts, considering issuesof both substance and procedure. We will first review the practice ofcivil commitment in the Commonwealth and attempt to analyze someof the chief shortcomings of civil commitment from the point ofview of furthering durable treatment relationships for persons suffer-ing from mental disorders. Then we will consider the process ofmediation as one alternative approach to civil commitment that mightbetter fit the therapeutic objectives that underlie clinical participationin the civil commitment process.

If. CIVIL COMMITMENT IN MASSACHUSETTS

As in other states, Massachusetts' statute and case law governingcivil commitment underwent a radical restructuring at the end of the1960s and beginning of the 1970s. This shift in civil commitmentlaw occurred in the wake of the civil rights movement and the al-ready dramatic social process known as deinstitutionalization.

Prior to 1970, involuntary commitment in Massachusetts followedthe familiar two physician certificate procedure. The statute autho-

Tensions in Procedural, Substantive, and Dispositional Criteria in Involuntary Commitment,39 VAND. L. REV. 83 (1986). See also H. Richard Lamb & Mark 3. Mills, Needed Changesin Laws and Procedure for the Chronically Mentally 1, 37 HosP. & COMMuNITY PSYCHIA-TRY 475 (1986).

8. Mary L. Durham & John Q. La Fond, The Empirical Consequences and PolicyImplications of Broadening the Statutory Center for Civil Commitment, 3 YALE L. & POL'YREV. 395, 401 (1985).

9. Id.10. Id. at 444-45.11. John . Ensminger & Thomas D. Liguori, The Therapeutic Significance of the Civil

Commitment Hearing: An Unexplored Potential, 6 J. PSYCHIATRY & L. 5 (1978).

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rized the deprivation of a person's liberty in a mental health facilitybased solely upon a finding that a person was ill and a proper sub-ject for treatment in a psychiatric hospital.12 Commitment was inde-terminate and, notwithstanding the occasional habeas corpus petition,without provision for further mandatory judicial review; the patientdid not need to appear before the judge, because, in the words of anold judicial order of commitment form, "I did not deem it necessaryor advisable for the reason that there is no doubt about h[is or her)insanity." The court applied what amounted to a best interests test. In1970, Massachusetts, consistent with changes taking place in otherstates, rewrote its mental health laws. 3 Indefinite psychiatric hospitalcommitments that occurred solely at the discretion of the staff wereabolished and replaced by a system of time-limited, court-orderedobservation and commitment periods.

The new statute and related case law sharply restricted commit-ment criteria and instituted strict legal safeguards. As in most otherstates, the standard for involuntary commitment changed from a "bestinterests," or need for treatment model to a dangerousness standard.By statute, the petitioner for commitment must now prove (1) thatthe person is mentally ill and (2) that the failure to retain the personin an inpatient facility would create a likelihood of serious harm. 4

Section 1 of Chapter 123 defines "likelihood of serious harm" as

(1) a substantial risk of physical harm to the person himself asmanifested by evidence of, threats of, or attempts at, suicide orserious bodily harm; (2) a substantial risk of physical harm toother persons as manifested by evidence of homicidal or otherviolent behavior or evidence that others are placed in reasonablefear of violent behavior and serious physical harm to them; or(3) a very substantial risk of physical impairment or injury tothe person himself as manifested by evidence that such person'sjudgment is so affected that he is unable to protect himself inthe community and that reasonable provision for his protection isnot available in the community."5

Even where these threshold requirements are met, the Massachusetts

12. MAss. GEN. L. ch. 123, § 51 (1956) (repealed 1981).13. A. Louis McGarry, Statewide Statistical Impact: Old Statute vs. New Statute, in CIV

COMMITMENT AND SOCIAL POuCY: AN EVALUATION op THE MAsSACHUSETrS MENTALHEALTH REFORM AcT op 1970 10 (1981). See also 1970 Mass. Acts 888 (1970).

14. MASS. GEN. L. ch. 123, § 8(a) (1992).15. Id.

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Supreme Judicial Court has held that the judge must also find thathospitalization is the least restrictive alternative in dealing with thethreatened harm." If involuntary civil commitment is sought atBridgewater State Hospital, the Commonwealth's secure forensic hos-pital, the petitioner must in addition to these three elements provethat no less secure, Department of Mental Health inpatient facility issuitable for such person, and that failure to retain such a person instrict security would create a likelihood of serious harm.17

Though classified as a civil proceeding and referred to as civilcommitment, the legal safeguards involved in Massachusetts hearingscontain many of the due process guarantees of criminal procedure.Patients have a right to periodic hearings; a right to be representedby counsel and to present independent testimony at such hearings; aright to an independent mental health examination, to receive noticeprior to such hearing and to have the hearing within fourteen days ofthe petition; and a right to appeal the commitment to the SuperiorCourt.18 Moreover, while the United States Supreme Court held inAddington v. Texas19 that the Constitution required use of a "clearand convincing" standard of proof in a commitment hearing, which isthe standard accepted in a number of other states, the court in Mas-sachusetts has found that the standard of proof in involuntary civilcommitment hearings is that applicable in criminal trials, namelybeyond a reasonable doubt." Persons examined by state experts pur-suant to court orders for the purposes of possible commitment mustreceive and understand notice regarding the non-confidentiality of theexamination, and they retain the right to refuse to answer questionsposed by the examiners.21

III. OLD NEWS: ON THE FAmiNGS OF POST-REFORM CiVILCOMMrrMENT

As currently practiced in Massachusetts and elsewhere, involun-tary civil commitment is most often a disempowering, devaluing,coercive and counter-productive means of attempting to secure anoth-

16. Commonwealth v. Nassar, 406 N.E.2d 1286 (Mass. 1980); Gallup v. Alden, 57 Mass.App. Div. 41 (1975).

17. MAss. GEN. L. ch. 123, § 8(b) (1992).18. Id. §§ 4-6, 9.19. 441 U.S. 418, 432 (1979).20. Superintendent of Worcester State Hosp. v. Hagberg, 372 N.E.2d 242 (Mass. 1978).21. Commonwealth v. Lamb, 303 N.E.2d 122 (Mass. 1974).

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er person's cooperation for psychological treatment. Under the aegisof short-term public safety concerns, involuntary civil commitmentfrequently sacrifices the long-term nurturance of a complicated treat-ment alliance. Insofar as it damages that long-term treatment alliance,it may also ultimately undermine its social protective goals, especiallyas the lengths of hospital stays grow shorter, and treatment compli-ance in the community grows correspondingly more important.

The problems with the practice of involuntary civil commitmentare multiple. The adversarial design of commitment hearings createstwo sets of those problems: those problems which occur when thehearings work as they are formally intended, and the more familiarproblems that stem from the yawning gap that separates civil com-mitment in theory from civil commitment in practice. Consideredfrom the perspective of advancing therapeutic outcomes, however,perhaps the most serious problems lie elsewhere: in the coerciverelationship that involuntary civil commitment installs between patientand care-givers, in the largely inflexible nature of the judicially man-dated outcomes, and in the constricted nature of the negotiation thataccompanies most involuntary civil commitment in which potentialadvances in treatment relationships are largely squandered.

Though vigorously adversarial in theory, involuntary civil com-mitment most often actually functions in either a non- or only mildlyadversarial manner. In Massachusetts, the professed substantive stan-dards are tough, the procedural requirements stringent, and the stan-dard of proof high. If statute and case law alone decided civil com-mitment in practice, Massachusetts law would make for an exemplaryprocess, featuring vigorously contested hearings and well-preparedtestimony to meet the high standard of proof. Judging by the law,one would also expect a routinely high percentage of court refusalsto grant petitions. for commitment either because the difficult standardof proof was not met on the threshold criteria for commitment, orbecause the court found that a less restrictive alternative to hospital-ization did exist. That the reality does not match any of these expec-tations will not surprise anyone familiar with the large body of em-pirical research on the practice of civil commitment across the UnitedStates.

One of the earliest and best studies of substantive and proceduralchanges in a state's commitment laws concerned the 1970 revisionsto the laws of Massachusetts.' Comparison to the pre-1970 period

22. See generally McGarry, supra note 13 (discussing the development of commitment

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showed a dramatic drop in total admissions, first admissions, andinvoluntary commitments of all types, and at the same time a markedincrease in conditional voluntary admissionsY Despite the major ef-fects of the new law-effects that A. Louis McGarry attributed moreto procedural rather than substantive changes-the daily practice ofinvoluntary civil commitment displayed many of the old habits. Aspart of the McGarry-directed research project, David Lelos observedcivil commitment hearings in Massachusetts to determine if the stan-dards and substantive criteria of the new statute were being met.24

He found that in the majority of cases, the attorneys representingpatients failed to cross-examine expert witnesses on either of thethreshold criteria for commitment (the existence of mental illness orthe likelihood of harm). Where they did cross-examine, attorneysfrequently restricted their questions to general inquiries aboutpatients' treatment progress. In no case did an attorney file an appealon behalf of an involuntarily committed patient.' Other evidenceand observations comport with trends routinely reported for otherstates. That research shows a general lack of adherence to thestricter standards and procedures established by post-reform statelaws.

In general, commitment hearings suffer from a lack of adherenceto the substantive laws governing commitment; from a general lackof both adversarial zeal and of the consistent, high-quality advocacythat can alone insure it; from a failure of the factfinder to rule inaccordance with procedural guarantees; and from a failure to forcethe hospital to prove that its dispositional opinions truly represent theleast restrictive alternative for psychiatric treatment. Hospital clinicianopinions continue to be overwhelmingly dispositive regarding theexistence of mental disorder, the causal connection between suchdisorders and a substantial likelihood of harm to self or others, and

laws in Massachusetts).23. ld. at 10-11.24. David Lelos, Courtroom Observation Study of Civil Commitment, in ClVIL CoMMrr-

MENT AND SOCIAL POLICY: AN EVALUATION OF THE MASSACHUSETTS MENTAL HEALTHREFORM Acr oF 1970 102, 114-15 (1981).

25. Id. The author criticizes the attorneys' performance in representing clients in civilcommitment programs. Id.

26. Harold Bursztajn et al., Process Analysis of Judges' Commitment Decisions: APreliminary Empirical Study, 143 AM. . PSYCMIATRY 143, 170-74 (1986); see also Paul D.Lipsitt & David Lelos, Decision Makers in Law and Psychiatry and the Involuntary Com-mitment Process, 17 COMMUNITY MENTAL HEALTH . 114, 115 (1981).

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the least restrictive setting in which care for these disorders can berendered. Despite a wealth of research literature detailing the short-comings of the post-reform reality, the practice of involuntary civilcommitment remains so flawed as to call to mind Michael L. Perlinand Deborah A. Dorfman's jaundiced summary of mental disabilitylaw: "Mental disability law generally regulates powerless individualsrepresented by passive counsel in invisible court proceedings conduct-ed by bored or irritated judges."'27

That civil commitment hearings do not operate according to theirexpressed substantive and procedural standards is by now very oldnews. The findings have remained consistent across jurisdictions,hospital sites, and statutory or procedural variations, and have shownlittle change over time. Two decades after the problems with post-reform involuntary civil commitment procedures were first identified,further tinkering with due process guarantees and substantive stan-dards has shown no significant impact. Indeed, the news sometimesgets worse: recent research has shown that the breach between formallegal requirements and actual practice is even more egregious in thecomparatively little-studied area of recommitment hearings than ininitial involuntary commitment hearings.'

As Eric Turkheimer and Charles D.H. Parry note, the lack ofadherence to substantive and procedural standards in these hearings isone of the most reliable findings in social science literature. Thosefindings need not be exhaustively rehearsed here."

If civil commitment hearings are to proceed in an adversarialmanner, the patients' attorneys must act as adversaries. The exerciseof the due process rights afforded to respondents in post-reform civilcommitment hearings rests with the patient's attorney. In the absenceof aggressive advocacy, patients might as well not have thoserights.' Attorneys' advocacy behavior has a major impact on judi-cial dispositional decisions; effective advocacy can as much as halve

27. Michael L. Perlin & Deborah A. Dorfman, Sanism, Social Science, and the Develop-ment of Mental Disability Law Jurisprudence, 11 BEHAVIORAL SCI. & L. 47 (1993).

28. Eric Turkheimer & Charles D.H. Parry, Why the Gap? Practice and Policy in CivilCommitment Hearings, 47 AM. PSYCHOL 646 (1992).

29. Id. at 646.30. Joseph P. Cyr, The Role and Functions of the Attorney in the Civil Commitment Pro-

cess: The District of Columbia's Approach, 6 J. PSYCHIATRY & L. 107 (1978); GARY B.

MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS 231 (1987); Michael L.Perlin, Fatal Assumption: A Critical Evaluation of the Role of Counsel in Mental Disability

Cases, 16 LAw & HUM. BEHAv. 39 (1992).

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the number of respondents committed involuntarily. 1

Yet research overwhelmingly indicates that consistent, aggressiveadvocacy simply does not occur in a substantial percentage of com-mitment hearings. This percentage is even larger in recommitmenthearings. 2 For a number of reasons, patients' lawyers are often inef-fective in representing them. In part this occurs because attorneysoften believe that doctors and hospitals know best when it comes tomental health issues. Attorneys may even believe that the hospital isthe best place for the patient (i.e., the "best interests" model).

In Massachusetts, the limp character of most patient representa-tion in commitment hearings led the Massachusetts Mental HealthLegal Advisors Committee to promulgate Attorney Performance Stan-dards in May, 1985. The Standards stipulated specific adversarialbehaviors required in order to provide adequate representation ofrespondents in involuntary commitment and mandated a training pro-gram for attorneys desiring appointment as counsel in civil commit-ment hearings.

Naomi Leavitt and Patricia L. Maykuth examined attorney advo-cacy behavior following the promulgation of these standards. Theyobserved the attorney's representation of clients facing involuntarycommitment to an unnamed security hospital which is identifiablyBridgewater State Hospital, the Commonwealth's forensic facility.33

Leavitt and Maykuth found no significant difference between the rateof agreement between hospital recommendations and judicial disposi-tions following the implementation of the new standards when com-pared to a sample of hearings that took place prior to their imple-mentation.' Perhaps most distressingly, they found that the level ofadvocacy for clients facing involuntary civil commitment was signifi-cantly lower than the level of advocacy for clients facing criminalcommitment, including men found not guilty by reason of insanity,men found incompetent to stand trial, and men who were chargedwith or convicted of a crime.35

31. Virginia A. Hiday, Reformed Commitment Procedures: An Empirical Study in theCourtroom, 11 LAw & Soc'Y REv. 657 (1977); see also Virginia A. Hiday, The Role ofCounsel in Civil Commitment: Changes, Effects, and Determinants, 5 1. PSYCHIATRY & L.551 (1977).

32. Turkheimer & Parry, supra note 28, at 648.33. Leavitt & Maykuth, supra note 4.34. Id. at 224.35. Id. at 225.

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The failures of due process and statutory adherence endemic toinvoluntary civil commitment, however, are not chiefly attributable toinconsistent counsel. Despite a cadre of knowledgeable and dedicatedjurists, many other judges either know little about or fail to havemuch interest in mental health issues. For public safety reasons, judg-es are often dubious about less restrictive alternatives to hospitaliza-tion; for good reasons, they are often skeptical of communityplacements and existing community mental health resources. Judgestypically defer to a hospital's expert opinion, and ask few questionsof the patients. "At best.., we have a justice system that is mar-ginally interested in the civil commitment process.' 36

In practice, therefore, many civil commitment hearings, and espe-cially recommitment hearings, have a duplicitous character. There is acertain semantic dementia about these hearings in which words donot to mean what they say. Whether the standard of proof is "clearand convincing" or "beyond a reasonable doubt," almost no evidencepresented at most civil commitment hearings would meet eitherthreshold in the mind of an impartial fact-finder. It is hard to seehow certain fundamental legal issues could be dispelled during thebrief periods of time in which most hearings take place: for example,reasonable doubt about a patient's mental disorder; the probability ofengaging in acts of self-harm or of assault to others; the causativerelation between that established probability and mental disorder; theexpert's qualifications to render a judgment regarding those issues,and the absence of less restrictive alternatives to the confinementsought by this particular hospital.37 The hearings therefore have an"as if' quality: though in theory devoted to protecting the libertyinterests of the patients, in practice they largely continue to operateaccording to a "best interests" model.

To the patients, the hearings most often retain a "kangaroo court"flavor: this is not a good model for responsible decisionmaking aboutmental illness, nor a particularly edifying picture of the responsibili-ties of citizenship. The hearings do little to instill patients' respectfor legal procedure or for the clinicians who offer such truncatedaccounts of patients' lives. Involvement in substandard hearings argu-

36. Paul S. Appelbaum, Civil Commitment from a Systems Perspective, 16 LAW & HUM.BEHAV. 61, 66 (1992).

37. Leavitt & Maykuth, supra note 4, at 222-24; Poythress, supra note 7, at 13-16; seegenerally CAROL A.B. WARREN, THm COURT OF LAST RESORT MENTAL ILLNESS AND ThELAw (1982).

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ably undermines the credibility of mental health professionals withtheir patients and damages later compliance with treatment regimens.Health-care compliance research shows that patients' perception oftheir care-givers as competent, prestigious, and motivated by thepatient's best interests enhances treatment compliance; these arehardly attributes likely to emerge unscathed in the average involun-tary civil commitment hearing.

Yet all is not well when hearings proceed in the vigorously con-tested manner envisioned by law reformers either. Adversarial hear-ings have potential therapeutic benefits for the patients. By giving thepatient the facts on which clinicians base their opinions, theydemystify mental health authority, and provide some basis uponwhich the patient can enter into a dialogue and debate with his orher care-giver. The patient also has an opportunity to hear the gravityof the doctor's concerns, and to gain some knowledge of the broadersocial implications of his or her behavior.39 Vigorously contestedadversarial hearings at least convey to the patient a sense of justiceand legitimacy.

Yet, insofar as involuntary civil commitment adheres to its rigor-ously adversarial standards, the process has a number of potentialtherapeutic short-comings for at least some patients. The adversarialnature of the commitment hearing may cause a patient psychologicaldistress, with long-term deleterious consequences on future compli-ance. Since the standard of proof is beyond a reasonable doubt, thestate must make a strong and, to the patient, potentially devastatingcase about the patient's mental disorder, and the likelihood of seriousharm that could result absent hospitalization. As a consequence, someclinicians in both uncontested and contested cases hedge their opin-ions and limit their evidence, further contributing to the non-ad-versarial nature of commitment hearings.

In an adversarial hearing, opposing counsel attempt to elicit someanswers and to prevent others from being entered in evidence. In the

38. DONALD MEICHENBAUM & DENNIS C. TURK, FACILITATING TREATMENT ADHERENCE:A PRACncioNERs GulDEBoOK 172 (1987).

39. John 3. Easminger & Thomas D. Ligouri, The Therapeutic Significance of the CivilCommitment Hearing: An Unexplored Potential, 6 3. PSYCHIATRY & L. 5 (1978).

40. Robert A. Bush, Dispute Resolution Alternatives and the Goals of Civil Justice:Jurisdictional Principles for Process Choice, 1984 Wis. L REV. 893; MELTON ET AL., supranote 38, at 231; see John Thibaut & Lauren Walker, A Theory of Procedure, 66 CAL. L.REV. 541 (1978).

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hospital's case, the emphasis is almost invariably confined to thepatient's deficits, and consequent dangerousness or disability: thepatient's deficits in perceptions, in thinking, in mood, and in theunderstanding of the patient's own illness experience. The hospitalattorney is not interested in, and the hospital case, particularly ondirect examiniation or narrative testimony, rarely touches on, anypsychological strengths of the patients, about which many of theclinical examiners may have only the haziest notions anyway. Such apresentation is devaluing to the patient, to the complexity of his orher experience, and to the complexity of their treatment relationships.Yet health care compliance principles, as summarized byMeichenbaum and Turk, strongly suggest that "focusing both on per-sonal strengths and weaknesses seems to increase perceived self-effi-cacy and the patient's adherence."'41

The adversarial nature of the commitment hearing may also makethe patient less cooperative with the staff, since the staff may nowrightly be seen as courtroom adversaries rather than as care-providers.The adversarial nature of the commitment hearing may render pa-tients less likely to be honest about issues relevant to commitment(e.g., the reappearance of symptoms such as auditory hallucinationsand the emergence of suicidal or homicidal preoccupations). Becausethe patient may be reluctant to share such experiences, the work ofputting them in perspective, of jointly monitoring and assessing them,or of differentiating distressing thoughts from compelling preoccupa-tions, may not take place, and when the patient finally returns to thecommunity, he or she is less prepared for continuing treatment.

A withdrawal from care-givers can also result in withdrawal froma sense of having a personal stake in the treatment process, beyondwhether it includes confinement. The adversarial nature of the com-mitment process can solidify the patient's passivity and may under-mine the development of the patient's sense of responsibility for hisor her own treatment. While attorneys and the occasional opposingexpert witness fight it out, the patient sits on the sidelines. Lastly,though the discharge of patients into communities with no resourcesfor their care figures among the effects of truly adversarial proceed-

41. MEICHENBAUM & TURK, supra note 38, at 80; see also David B. Wexler, HealthCare Compliance Principles and the Insanity Acquitee Conditional Release Process, inESSAYS IN THERAPEuTIC JURISPRUDENCE 199, 204-05 (David B. Wexler & Bruce J. Winickeds., 1991) [hereinafter Wexler I].

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ings, that is not a fault of the civil commitment law, but rather ofthe collapse of public mental health care.

From the perspective of research findings on health care compli-ance, the worst problem is synonymous with involuntary commitmentitself, namely that the patient is coerced. The most robust finding inthe health care compliance literature is that treatment is enhanced,and compliance increased, when treatment represents a voluntarycompact between patient and health care provider.42 Involuntary civilcommitment is a poor vehicle for advancing such a relationship.When hospital staff seek involuntary commitment, they thereby ac-knowledge either a failure to establish or a subsequent breakdown inthat voluntary compact. What should be a working dialogue aboutpsychological care and its goals has been reduced to an enforced,one-sided, legally-defined relationship between patient and hospital.

The practice of involuntary civil commitment disempowers thepatient, and limits the treatment relationship that results. There is aninherent lack of flexibility in the way the process works. Rather thandealing with treatment relationships as a continuous process, includ-ing hospitalization decisions, the existing practice of involuntary com-mitment narrows the process to a dichotomous choice: in or out,commitment or no commitment, all or nothing. This dichotomy corre-sponds to the anxiety of our patients, where the main issue oftencenters on whether or not they are going to be confined; and alsosometimes to our own anxiety, which we mask by ceding to thecourt the rhythm of the treatment process.

Inflexibility and disempowerment occur when an actual hearingtakes place, and where, as frequently happens, negotiation precedesand eventually preempts a hearing. In neither case is the patient'svoice heard. If a hearing takes place, the patient rarely speaks, exceptsometimes to make an extemporaneous speech, unrehearsed with theattorney, protesting his or her commitment. These are tolerated, andoften unbearably sad. When the judge wants to know something, heor she almost invariably addresses the patient's attorney, not the pa-tient.

Nor is the patient heard when a full hearing does not take place,and is preempted by negotiation, or when the hearing is practicallyreduced to a status report. The National Task Force pointed out that"[i]nvoluntary civil commitment cases represent disputes among a

42. MECMH AUM & TURK, supra note 38, at 80.

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number of parties ... over therapeutic and protective measures un-dertaken on behalf of the respondent and society. Whenever possible,those disputes should be resolved informally to the satisfaction of allparties, thereby avoiding a formal commitment process."'43 Insofar asnegotiation occurs, it is private, resolved in the hospital corridors oron the telephone between counsel for the hospital and counsel for thepatient, or between mental health staff and the patient's attorney. Thepatient is almost never present during this informal discussion, muchless an active participant in the negotiations. In negotiating for thepatient, the lawyers, in collusion with the care-givers, disempowerhim or her and effectively thwart the establishment of a voluntarytreatment compact between the patient and mental health profession-als. If an agreement is reached among these parties, the hospital ei-ther withdraws the petition, or a perfunctory hearing is held. Thehearing often does not exceed five minutes, during which the patientmakes no declaration nor expresses any understanding to the court,doctors, or significant others. Family members or significant othersare rarely invited.

Yet negotiation and contracting between patient and mental healthprofessionals to promote treatment are the aspects of this non-ad-versarial process that have the greatest potential for therapeutic gains.The potential gains derived from treatment relationships are largelysquandered by the judicial goal of maintaining an efficient courtdocket. The informal nature of these dispositions disregards the well-documented importance of behavioral contracting;" the opportunityfor public "contracting" is consistently avoided. While a great deal ofinformal negotiation does take place, it does not adhere to the princi-ples of health care compliance, such as more public process, inwhich the importance of family members being brought into the pro-cess is recognized and provided for.

Not only does involuntary civil commitment tend to reduce thesubstantive outcome to a decision to commit or not to commit a pa-tient, it is also all or nothing procedurally. The procedure is reducedto a decision to conduct a full hearing or a brief agreed upon dispo-sition, in which nothing is said by the patient at all. Where negotia-tion is in a sense successful, it is not public, not witnessed, not par-

43. National Center for State Courts, Guidelines for Involuntary Commitment, 10 MENTAL& PHYsICAL DisABELrrY L. REP. 409 (1986).

44. See MEICHENBAUM & TURK, supra note 38, at 164-74.

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ticipated in by the patient, but rather agreed to in the corridors, outof the court's hearing, out of the public's hearing, out of familymembers' hearing, and out of the patient's hearing.

IV. MEDIATION: A BETER APPROACH?

The difficulties with the civil commitment process described inthe previous section are sufficiently serious that it is worth consider-ing other ways in which the needs of the participants (and of societyin general) can be better met. One such method is mediation, one ofa number of methods of alternative dispute resolution (ADR) that hasgrown in popularity in recent years. The attempt to resolve legaldisputes other than by traditional adjudicative methods is not new,and the use of such methods has multiplied in recent decades.Current interest in ADR can be traced to the 1970s, when complaintsabout the number of lawsuits and the delay in bringing them to trialbecame more vociferous. Papers by Lon L. Fuller' and Frank E.Sander' both reflected and amplified the interest in ADR, and thesupport of then-Chief Justice Warren Burger47 provided an additionalimpetus. Since then, there has been an explosion of interest in anduse of alternative dispute resolution methods. There are currently sev-eral hundred programs providing a variety of ADR services.48 TheAmerican Bar Association has a standing committee on dispute reso-lution which organizes conferences and symposia, and issues a num-ber of publications on the topic.

A large number of alternative dispute resolution methods havebeen suggested; each has its own strengths and weaknesses, and eachhas settings in which it may be appropriate. In addition to mediation,some of the more widely-used methods include arbitration, summaryjury trial, mini-trial, moderated settlement conference, and private

45. See Lon L. Fuller, Mediation-Its Forms and Functions, 44 S. CAL. L. REv. 305(1971).

46. Frank EA. Sander, Varieties of Dispute Processing, in ADDRESSES DELIVERED ATTHE NATIONAL CONFERENCE ON THE CAUSES OF DISSATISFACTION WIH THE ADMINISTRA-iON OF JUSTICE, 70 F.R.D. 79, 111-34 (1976).

47. See The Honorable Villiam E. Burger, Chief Justice of the United States, Agenda for2000 A.D.-A Need for Systematic Anticipation, in ADDRESSES DELIVERED AT THE CONFER-ENCE ON THE CAUSES OF DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE, 70F.R.D. 79, 83 (1976).

48. Marilyn Park et al., Developing a Legal Services Program Policy on AlternativeDispute Resolution: Important Considerations For Older Clients and Clients with Disabilities,26 CLEARINGHOUSE REv. 635, 636 (1992).

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judging ("rent-a-judge"). 49 For reasons set out below, mediation isthe most attractive alternative in the civil commitment context. Inmediation, a neutral third party-the mediator-attempts to assist thedisputing parties in resolving their differences. This Article discussesthe important characteristics of mediation, differentiated from tradi-tional adjudication methods as well as other ADR methods.

A. Advantages of Mediation

Two important advantages of mediation are control and flexibility.The parties have more control and are more actively and directlyinvolved than in traditional adjudication." This is of particular im-portance in civil commitment, where, as we have said, the patient orrespondent often has no power or control. Closely related is thegreater flexibility provided by mediation-the fact that the partieshave more freedom to reach a settlement acceptable to both parties:

Mediation is less bound by rules of procedure and substantivelaw, as well as certain assumptions or norms, that dominate, theadversary process. The ultimate authority in mediation belongs tothe parties themselves and they may fashion a unique solutionthat will work for them without being strictly governed by prece-dent nor concerned with the precedent they may set for oth-ers.51

This is in contrast to traditional adjudication, as well as the tradi-tional outcome of civil commitment, where the result, as we havesaid, is commitment or no commitment. The flexibility of mediationcan also provide an opportunity to deal with underlying issues thatwould be more difficult to deal with in a more traditional adjudicato-ry process:

For example, if a tenant has assaulted a landlord because shehas become frustrated by the landlord's repeated failure to pro-vide heat, the parties may be more interested in a free-rangingproceeding leading to a solution of the underlying problem (i.e.,

49. AMERICAN BAR ASSOCIATION, ALTERNATIVE DIsPUrE REsOLUTION: AN ADR PRIMER(3d ed. 1989) [hereinafter ABA]; L. KANOwrrz CASES AND MATERIALS ON ALTERNATIVEDISPUTE RESOLUTION (1985).

50. Robert E. Emery & Melissa M. Wyer, Divorce Mediation, 42 AM. PSYCHOL. 472(1987).

51. H. Jay Folberg, Divorce Mediation-A Workable Alternative, in ALTERNATIVE MEANS

OF FAMILY DISPUTE RESOLUTION 12, 16 (Howard Davidson et al. eds., 1982).

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the lack of heat) than they are in a full-blown due process adju-dication on the assault charge.?

Another important advantage lies in the cooperative nature of themediation process. As Folberg53 puts it in his discussion of divorcemediation, "unlike the adjudicatory process, the emphasis is not onwho is right or who is wrong or who wins and who loses, but ratherupon establishing a workable solution and resolution that best meetsthe family's own unique needs." Moreover, the mediation process isconsensual-agreements are not imposed by the court. This coopera-tive, consensual quality is often said to be particularly importantwhen there is an ongoing relationship that is likely to persist; that is,when there is a "shadow of the future."' In civil commitment, thereare two kinds of ongoing relationships of special significance. One isthe relationship between the patient and the hospital staff. The other,which will be more important in many cases, is the relationship be-tween the patient and his or her family, especially if the family hasbeen actively seeking commitment. In the latter case, much long-last-ing harm can come from the patient's perception that the family istrying to "have me put away" or "get rid of me."

A number of studies have provided empirical support for theadvantages of mediation over more traditional adjudication methods.Craig A. McEwen and Richard J. Maiman 5 studied cases filed in asmall claims court in Maine. They found that the rate of compliancewas significantly higher in cases in which mediation was employedin lieu of adjudication In addition, mediation was rated especiallyfavorably in cases where the parties had a prior ongoing relation-ship.' In a study of mediation in custody cases in Colorado, JessicaPearson and Nancy Thoennes also found mediation superior to adju-dication in a number of respects, including satisfaction with the pro-cess, and, like McEwen and Maiman, a higher rate of compliance. 8

These studies have their critics, 9 however, and the mediation pro-

52. ABA, supra note 49, at 10.53. Folberg, supra note 51, at 16.54. Park et al., supra note 48 at 638.55. Craig A. McEwen & Richard J. Mfaiaan, Small Claims Mediation in Maine: An

Empirical Assessment, 33 ME. L. REV. 237 (1981).56. Id. at 260-64.57. Id. at 257.58. Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes: A

Longitudinal Evaluation, 17 FAM. L.Q. 497, 504-10 (1984).59. Robert J. Levy, Comment on the Pearson-Thoennes Study and on Mediation, 17 FAM.

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cess itself has attracted its share of criticism.'

B. Using Mediation in Civil Commitment

How might mediation be used in civil commitment? In general,the goal in mediation would differ from the goal in civil commitmenthearings: instead of centering on ultimate dispositional goals-is therespondent staying or going-mediation would focus on treatmentgoals and developing a shared framework for how those goals mightbe attained. For example, if a person was suicidal, both parties mightagree that a major goal was preventing self-injury. They would thenseek to agree on the treatment methods and resources that would bemost successful in accomplishing that goal. The patient would thenhave the responsibility of following the agreed-upon treatment plan.The hospital would have the responsibility of providing that treatmentand those resources, and the methods might very well include a vol-untary hospital stay during which the patient would agree to refrainfrom acts of self harm, to engage actively in therapy, to accept medi-cations where indicated, and to work with the staff in monitoringsuicidal thoughts or symptom patterns associated with them (e.g.,psychotic depression, panic attacks, or hopelessness). The hospitalstaff and the patient would monitor the elements of the plan thathave to be fulfilled prior to the patient leaving the hospital. Suchelements might also include evidence of improved judgment or someincrease in community protection or support. A similar form of planmight be adopted in the case of a patient who presents some risk ofharm to others, although the specifics would differ greatly from caseto case, and as we indicate below, not all patients are candidates formediation.

Alternatively, if a patient strongly believed that he or she did notneed to be hospitalized, the patient might be able to muster treatmentresources in the community and a supportive social network sufficientto convince the mediator that hospitalization need not take place toadvance the treatment goals. Hospital staff might then agree thathospitalization need not occur if the patient agreed to make certain

L.Q. 525 (1984); see also Neil Vidmar, Assessing the Effects of Case Characteristics andSettlement Forum on Dispute Outcomes and Compliance, 21 LAw & SOc'Y REv. 156(1986).

60. Richard E. Crouch, The Dark Side of Mediation: Still Unexplored, in ALTERNATIVEMEANs op FAMY Disptrr REsOLUTON 339 (Howard Davidson et al. eds., 1982); see alsoOwen M. Fiss, Against Settlement, 93 YALE LJ. 1073 (1984).

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commitments. In such a case, the hospital staff would have a respon-sibility to ascertain whether the outside resources, living arrange-ments, and treatment programs were realistic, and to share the medi-ated agreement with the community mental health providers. In thatway, all parties could understand the treatment objectives, the pro-posed means to realize those objectives, and the concerns that origi-nally led to a proposed hospitalization. There are some similaritiesbetween this latter form of agreement and outpatient commitment,which in the last few years has been advocated as an alternative tomore traditional forms of commitment.61 Since Massachusetts doesnot have outpatient commitment, this kind of agreement would nothave the force of statute. If hospital staff could not agree, and felt acontinuing ethical obligation to prevent high risk behavior throughhospitalization, they would still have an affirmative duty to press forcivil commitment through the usual means.

Several criticisms of this proposed approach could be raised.First, it might be argued that it would further imbalance an alreadyimbalanced relationship; that the relative abilities and bargaining posi-tions of each side are such that patients would be at an even greaterdisadvantage than they are now. We will deal with this issue atgreater length in the next section, but it is worth remembering thatthe great majority of civil commitment hearings end with the patientbeing committed.62 It is not overly cynical, then, to respond by say-ing that things could not get much worse in this regard.

Second, it could be argued that this kind of bargaining and nego-tiation already goes on routinely in hospital settings, both before andafter patients are committed, as part of treatment planning, and aspart of the eventual discharge process. But there are advantages toworking out the agreement as part of the mediation process. First, thepresence of the mediator makes it more likely that the agreement willbe spelled out and clearly understood by all parties. Second, asWexler himself has pointed out, "public commitment [meaning publicagreement] leads to greater adherence than private commitment ' '

and presumably this would be true for both parties.A final objection we will consider here is that if an agreement of

61. Edward P. Mulvey et al., The Promise and Peril of Involuntary Outpatient Commit-ment, 42 AM. PSYCHOL 571 (1987).

62. See supra notes 65-69 and accompanying text.63. MiCHENBAUM & TURK, supra note 38, at 174. See also Wexler I, supra note 41, at

206.

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this sort between patient and hospital can be reached, the result couldbe a voluntary admission, so that neither a commitment hearing normediation will be necessary. But even in a voluntary admission, amediated agreement might still be desirable, for the reasons notedabove. Moreover, voluntary admissions have been criticized on anumber of grounds. They are sometimes not truly voluntary; somepatients who admit themselves voluntarily do so because they havebeen threatened with involuntary commitment if they do not.' Vol-untary patients also generally have fewer procedural protections thanthose who are involuntarily committed.

V. ISSUES AND PROBLEMS WrrH THE ADR APPROACH

A. Who is Appropriate for Mediation, and Who Would DecideThis?

Perhaps the most complicated practical issue posed by the attemptto use mediation as an alternative to involuntary civil commitment isto determine who is appropriate for mediation and who would decidethis. Currently mediation is generally not used or recommended whenthere is a question concerning the competence of one of the par-ties.' Such a question arises in most cases where civil commitmentis sought. Except for the informal procedures we have discussed, notype of alternative dispute resolution is currently used in civil com-mitment situations. Presumably, this is because people with seriousmental disorders are seen as not fully capable of effectively repre-senting themselves in such contexts.

Without denying the difficulties involved, we believe that a sig-nificant proportion of patients have the ability to participate in media-tion and that mental health professionals have the need to involvethem in it. Insofar as securing durable treatment relationships remainsthe overriding therapeutic goal, and insofar as mediation might haveadvantages over involuntary civil commitment in promoting mentalhealth care compliance with some patients, mental health profession-als have an interest in allowing as many persons to participate inmediation as can effectively do so. To achieve its goals and to repre-

64. Janet A. Gilboy & John R. Schmidt, "Voluntary" Hospitalization of the Mentally Ill,66 Nw. U. L. REV. 429, 430 (1971); Dan A. Lewis et al., The Negotiation of InvoluntaryCivil Commitment, 18 LAw & Soc'y REv. 629 (1984).

65. ABA, supra note 49, at 11.

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sent an alternative approach to involuntary civil commitment, media-tion cannot simply be for the already compliant patient, but mustnecessarily involve some of those who have weak relationships withmental health providers or are otherwise somewhat treatment resistant.

As Michael Perlin has argued, there is certainly a "sanist" preju-dice at work in denying the possibility of mediation to personswith mental disorders. Particularly within the less formal mediationsetting, many mentally disordered persons can defend their own inter-ests, serve as effective advocates for their own point of view andtake into account the needs and wishes of others. Even some patientswho are quite seriously impaired can understand the need to changesome aspects of their behavior, as well as argue on their own behalffor reasonable changes in the behavior of others or in their environ-ment.

Still, the difficulties are real, and not all psychiatric patients canparticipate meaningfully in mediation. As with everything else con-nected to this proposed use of mediation, experience with the processcan alone answer some of these practical questions. We would investpower in the mediator to decide if mediation was an appropriateoption. If, either before mediation begins or as it proceeds, the medi-ator believes that the patient is not competent to participate meaning-fully, the mediator can veto or discontinue mediation. In such a case,

66. As stated by Michael Perlin:They reflect, rather, an irrational prejudice, an 'ism', of the same quality andcharacter of prevailing prejudices such as racism, sexism, heteroism, ethnicbigotry and that have been reflected both in our legal system and in the waysthat lawyers represent clients. This prejudice . . . infects both our jurisprudenceand our lawyering practices.

Michael L. Perlin, On "Sanism", 46 SMU L. REV. 373, 374 (1992); see generally GORDONW. ALLmORT, THE NATURE Op PRE.uDIcE (1955).

"Sanism" is an intriguing and theoretically extremely productive concept, and it servesas a powerful indicator of the biased attitudes that others feel towards the so-called mentallydisordered. But there are theoretical difficulties inherent in thinking about "sanism' throughthe metaphor of prejudice. There is a large theoretical, sociological, and historical literaturedisputing assumptions like those of Allport's (sometimes referred to as "ideologist" assump-tions) about the nature of "racism," or, for example, "sexism." Racism, or more properly,white supremacy in the United States cannot be adequately understood as a set of bad ideasor irrational prejudices, nor should the material and institutional realities of white favoritismbe viewed as the reflection or resultant infection of these ideas. Related objections can beraised about understanding male supremacist ideas as irrational prejudices causing socialattitudes, and finding their reflection in the material and institutional realities of male su-premacy. In a related way, prejudice alone does not explain, say, the shifting social construc-tions of the mentally disordered, nor the legal and social practices that historically developedfor their control.

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the more traditional civil commitment procedure would then be used.Such recourse to a traditional civil commitment procedure would onlyoccur if a mediated agreement is impracticable or unobtainable.

B. Who Mediates, and What Kind of Training and QualificationsDo Mediators Need?

An important question, of course, is who mediates? There are anumber of possibilities. The key requirement is that the mediator beknowledgeable about the relevant issues. These would include theapplicable mental health law, the nature of severe psychological dis-turbance, the day-to-day functioning of mental hospitals, and existingmental health resources in the community. Persons whose originalbackground and training was in either mental health or the law couldserve as mediators, as long as they had the requisite knowledge andinterest. This parallels the situation in divorce mediation, where medi-ators are drawn from both the legal and mental health fields.' An-other possibility would be a mediation team consisting of a mentalhealth professional and a legal professional. In his discussion of alter-native models in divorce mediation, Richard Coombs asserted that aninterdisciplinary mediation team was preferable to a single media-tor.

68"Sanist" prejudice may exert ideological pressures on the media-

tors themselves. Virginia A. Hiday'6 has pointed out that manyrespondents' attorneys function as guardians ad litem or as bystandersin civil commitment hearings. A variety of factors could incline me-diators to defer to a medical model or to the hospital's position, orto assume a role as guardian ad litem. The mediators would comefrom social backgrounds similar to those of the hospital staff; theywould not share the sometimes bewildering or alienating disorders ofthe patients. Further, like the judges, attorneys and others involved incivil commitment today, mediators who devoted a substantial portion

67. Russell M. Coombs, Noncourt-Connected Mediation and Counseling in Child CustodyDisputes, 17 PAM. L.Q. 469, 470 (1984); Linda 3. Silberman, Professional ResponsibilityProblems of Divorce Mediation, in ALTERNATIVE MEANS OF FAMILY DISPUTE RESOLUTION239 (Howard Davidson et al. eds., 1982).

68. Coombs, supra note 67, at 494-95.69. Virginia A. Hiday, Are Lawyers Enemies of Psychiatrists? A Survey of Civil Commit-

ment Counsel and Judges, 140 AM. L PsYcHIATRY 323 (1983); see also Virginia A. Hiday,Civil Commitment: A Review of Empirical Research, 6 BmHAvIORIAL Sci. & L. 15, 27-30(1988).

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of their work life to this type of mediation would tend to be some-what isolated within their professions. It is hard to imagine an equiv-alent number of mediators' journal articles or workshops occurring onthe issue of working with alternatives to civil commitment as arecurrently dedicated to other areas such as divorce mediation. Hence,the danger exists that the mediators' natural reference group mighttend to become the clinicians and they would thus lose their impar-tiality. Presumably their training, general code of ethics as mediatorsand some type of professional association could help counterbalancethe pull towards the clinicians' point of view, but the danger wouldremain significant.

C. The Issue of Legal Representation

The issue of legal representation of the patient presents a difficultquestion. At first glance, it would seem important for patients tohave legal representation during mediation. The problem is that sucha procedure would simply perpetuate the powerlessness felt by mostpatients who become enmeshed in the civil commitment system. Italso seems to defeat part of the purpose of mediation, namely to letthe parties speak for themselves. For this reason, we suggest thatonly the parties involved be present during mediation sessions: thepatient, a clinical administrator, and the mediator, together with fami-ly members or significant others. The patient may be encouraged toseek legal advice beforehand, and it may be desirable for each partyto have an attorney examine the agreement before it is made final.But the agreement itself should be a product of the parties involved.

VI. IN THE GUSE OF A CONCLUSION

In the streets and over subway grates, we daily witness the re-sults of the widespread abandonment of care for many seriously men-tally disabled people. For those mentally disordered persons whohave experienced hospitalization, poor treatment compliance in thecommunity, and inadequate community treatment services have com-bined to maintain them in perilous conditions. Viewed from the per-spective of therapeutic jurisprudence, the system of civil commitmentas it currently exists may make some modest contribution to thatresult. No amount of tinkering from a rights-based agenda with com-mitment criteria is likely to correct the failures of our current system.We have attempted instead to look at civil commitment from the

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perspective of therapeutic outcome, and to explore mediation as onepossible procedural alternative to a set of laws, procedures, and legalagents that manifestly do not function as intended.

How mediated agreements between clinicians and patients wouldwork cannot be exhaustively described in advance of experimentingwith such an alternative. Some of that experimentation need not waiton the full implementation of a mediation model. Even without insti-tuting a full-blown mediation process, some of our suggestions couldbe incorporated into current civil commitment procedures.

Whether experimentation with mediation takes place depends onthe active interest of another group which may be resistant to the at-tempt, namely hospital-based mental health professionals. Wexleremphasizes that Meichenbaum's and Turk's review of health carecompliance research7 includes a discussion of why health care pro-fessionals in general might not adhere to the recommendations de-rived from that research.71 It is not self-evident that hospital-basedmental health professionals would readily embrace mediation or someother form of alternative dispute resolution in lieu of involuntary civilcommitment hearings. After all, as the research cited above indicates,in involuntary civil commitment those hospital-based professionalshave a system that already works reasonably efficiently in constrain-ing a certain set of patients to accept a certain type of inpatient treat-ment. In adopting mediation, those professionals would be relinquish-ing some of the control and authority they currently exercise over apart of the treatment process, and they would certainly lose some ofthe efficiency that involuntary civil commitment now provides.

Yet a major gain would come with these losses. If civil commit-ment today is usually all or nothing, mediation would mean thatmental health professionals will lose some control over hospitalizationdecisions, but in return perhaps gain a different quality of coopera-tion from their patients both in the hospital as well as after theyleave it. Given our current results with involuntary civil commitment,the risk seems worth taking.

Finally, in any discussion of reforming the civil commitmentprocess, there are issues that loom far larger than whether or not touse mediation. Turkheimer and Parry argue that the "best interests"model continues to hold sway because alternative treatment place-

70. Wexler 1, supra note 41, at 12.71. MEICHENBAUM & TURK, supra note 38, at 87.

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ments, including alternative outpatient services, are often lacking.?Because we think this is true, the adoption of mediation, or someother alternative dispute resolution method, will not necessarily leadto radical shifts in the practice of building durable treatment relation-ships, or of utilizing hospital stays as one, subordinated part of thoserelationships. Insofar as treatment alternatives are lacking, noone-judges, lawyers, or mediators-will inquire very seriously or forvery long into the least restrictive alternatives to hospitalization. Amediated agreement calling for community placement will not workif no such placement exists or if it has a six-month waiting list. Thebest commitment law, the most scrupulous adherence to substantiveand procedural criteria, or the most empowering process mean littleor nothing without community treatment services, employment, andadequate housing.73 No reform or alternative to involuntary civilcommitment can have anywhere near the effect of adequate mentalhealth resources, meaningful work, or a home in the communities inwhich mentally disordered persons deserve their place.

72. Turkheimer & Parry, supra note 28, at 647.73. John Petrila, Redefining Mental Health Law: Thoughts on a New Agenda, 16 LAw &

HUM. BEHAV. 89, 90 (1992).

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