Indeed, capacity is not a global concept. A court may determine an individual’s capacity to make decisions about self care and property, and may appoint a guardian or conservator. But there is also capacity to make a will, capacity to drive or marry, capacity to stand trial, capacity to consent to medical treatment – and capacity to mediate.
Many capacity decisions are made outside a courtroom. For instance, every day doctors must make judgments about the capacity of patients to give informed consent. They assess whether the patient understands the proposed treatment and the risks involved. There may be a “sliding scale of capacity” – a lower level of understanding might be required for consent to a flu shot than consent for chemotherapy or withdrawal of a respirator.
Lawyers also routinely must consider capacity. They must decide whether a client has capacity to execute a will, a durable power of attorney, trust or other legal document – or even capacity to retain the lawyer. For example, execution of a will requires that the client understand the nature and extent of the property to be transferred and the identity of the intended beneficiaries.
In the same way, mediators must make judgments about the understanding of the parties. The ADA Mediation Guidelines name several factors to be considered: “The mediator should ascertain that a party understands the nature of the mediation process, who the parties are, the role of the mediator, the parties’ relationship to the mediator, and the issues at hand.” The Guidelines note that this consideration should not “rely solely on a party’s medical condition or diagnosis” and that “an adjudication of legal incapacity is not necessarily determinative of capacity to mediate.”
Since we want people to mediate their disputes, mediators should begin by assuming capacity and should be loathe to exclude a party based on lack of capacity – should set the bar low. Yet mediators also must ensure that if a conflict is mediated a party in fact can understand the process and abide by the outcome.
There is no surefire way to make judgments about capacity – there is no “bright line or “capac-ometer” and it is often a very gray area. In fact, recent writings suggest that for these reasons the term “incapacity” (and certainly the older and more global term “incompetency”) be replaced with the term “diminished capacity” or “diminished capacities.”
The question is not so much “does the party have capacity to mediate” as “can the party mediate with support?” and “what can the mediator do to facilitate the understanding of the party?” The Americans with Disabilities Act requires accommodations if a party has a disability, including a cognitive impairment, and the ADA Mediation Guidelines state that a mediator should consider “whether an accommodation will enable the party to participate effectively” and if so, the mediator should offer the accommodation.
Accommodations might include changing the place or time of the session, including a support person, keeping the sessions short, or using techniques and strategies helpful for communication with persons with memory loss or confusion.
What if no accommodation or support will help? Can a legal surrogate (defined under state law) step into the party’s shoes in the mediation process? The ADA Mediation Guidelines say yes – “if despite support, a party lacks capacity to participate in the mediation, mediation should not proceed unless a surrogate participates in the process to represent the interests of the party and make the mediation decisions in place of the party.” If a surrogate is involved, the mediator should encourage the party to be present as well, if possible.
Mediators must take caution though. The values and preferences of a surrogate may not be the same as those of the party. The mediator must be alert to these differences and flag any indication that the surrogate does not or cannot really represent the party.
All of these knotty issues of capacity to mediate were examined in 2000 in a “Symposium on the Legal and Ethical Issues in the Progression of Dementia” which passed a resolution on dementia and dispute resolution. The resolution and a background issue paper are published in the Georgia Law Review, Vol. 35, No. 2, Winter 2001.