REPRINTED WITH PERMISSION. This article was originally published in Alternatives, Volume 21, Number 6 (June 2003).
The issue of party capacity to mediate comes up with some frequency in the context of disputes involving one or more parties with a disability.
In mediation, “capacity” is used to refer to a party’s mental ability to understand the process and options under discussion, and to give voluntary and informed consent to any agreement reached. ADA Mediation Guidelines, February 2000 (available www.cardozojcr.edu). Although capacity is an issue that applies to parties who are not people with disabilities, parties with disabilities more often may be judged unfairly as lacking in capacity.
This link between disability and capacity reflects a persistent and stigmatizing trend in the larger society, one that has contributed to such longstanding policies as the exclusion of children with disabilities from public education, which until 1975 was legal in many states.
Since the 1990 passage of the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., federal and state public outreach programs have sought to emphasize the many capabilities of people with disabilities, as well as the role of barrier removal and reasonable accommodation in realizing their potential. Still, the notion that physical disability and mental impairment go hand in hand lingers in the minds of the general public.
There are many reasons for this, not the least of which is our tendency to associate diminished physical ability to move independently, see, hear, or express oneself with a diminished ability to think and reason. For instance, the speech and movements of people with cerebral palsy create an impression in many people’s minds of impaired intellectual capacity. The fact is that most people with cerebral palsy are of average intelligence, and quite a few are brilliant. People with active Tourette’s syndrome are regarded as “crazy,” when in fact they are quite aware of and often disconcerted by reactions over which they have little neurological control.
None of this is to deny the real mental impairments resulting from developmental delays and disorders, and certain kinds of psychiatric illnesses. It simply means that people generally need a better understanding of disability and how our thinking about disability affects our perceptions about capacity and ability.
Terms like “capacity,” “competency,” and their opposites are part of the legal parlance mediators draw upon in defining our own practice issues. In an effort to understand why these terms come up so frequently in the context of disability, I checked my old sixth edition of Black’s Law Dictionary from law school days, published in 1990. The seventh edition came out in 1999. As defined, the terms are relative; they can be applied in a variety of contexts to mean somewhat different things.
The relevant definition of “capacity,” in the sense of the mental ability to comprehend, analyze, make value judgments and decisions, is the “[m]ental ability to understand the nature and effects of one’s acts.” Black’s Law Dictionary, 6th edition, 207 (1990). The relevant definitions of “incapacity” and “incompetency” are, respectively, “the want of intellectual ability or power” and “the lack of ability, knowledge or fitness to discharge a required duty,” or “to show want of physical, intellectual or moral fitness.”
These definitions didn’t yield any interesting insights until it is compared with the definition of “disabled person.” The following is the only definition given: “Person who lacks legal capacity to act sui juris, or one who is physically or mentally disabled from acting in his [sic] own behalf or from pursuing occupation.” The first half of the definition refers to a person with the legal status of civil disability; the second half speaks for itself.
There, in the world’s foremost law dictionary, a disabled person is defined as one who by virtue of his or her impairment is “disabled from acting on his or her behalf.” No wonder the question of capacity so often comes up in the context of disability.
Our tendency to link disability with diminished ability to act on one’s own behalf is reinforced by the fact that people with disabilities often need accommodations in order to be able to actualize their abilities and demonstrate their competency. All too often, the availability of the necessary accommodation is a matter not entirely within their control.
And here is where the problem lies. In our culture, the need to rely on anything or anyone outside oneself is viewed as a kind of weakness. Although all of us rely on others every minute of every day for comfort and survival, most of us see ourselves as independent and self-sufficient. We are able to maintain this illusion because our reliance on others is invisible to us. We do not let the awareness creep in that every day there are tens and maybe hundreds of people involved in “empowering” us, by providing the necessary “props” or accommodations we need.
For example, we depend upon those who produce the energy and technologies that power our “assistive devices,” including cars, cell phones, electric lights and computers. These “assistive devices” extend our ability to move from one place to another, to communicate, to see, and to process information. Without these devices, and those who make them available, our capacity and ability to achieve in life would be greatly diminished.
The increasing reliance of all people on “assistive” technologies and devices is changing the way we think about education. It is well-known that some people learn better with highly visual teaching materials and techniques, others with audio-based instruction, still others with activity-based methods. This awareness has led to significant changes in teaching styles and methods over the years to accommodate the various learning styles represented in the classroom.
Similarly, accommodations such as frequent summarizing and the use of easel and newsprint can enable a person with short-term memory or concentration impairments to participate in mediation effectively enough to make his or her own decisions. Accommodating people with disabilities is a simple and logical extension of the notion that all human beings depend upon endless “accommodations” and “assistive devices” in their environment to increase their capacity to act on their own behalf.
As I understand it, capacity is one of those concepts belonging on a continuum. Capacity and ability are not only innate characteristics whose development is influenced by a person’s choices. Capacity and ability are also highly responsive, and indeed dependent upon, support from the outside environment. This is true for all human beings, whether or not a disability is part of their make-up.
The Standards of Practice for California Mediators define two standards of appropriate mediator conduct in mediation as “addressing obstacles to communication,” and “building the capacity of the parties to make an informed decision.” Standards of Practice for California Mediators, California Dispute Resolution Council (August 2000)(available at www.cdrc.net/pg2.cfm). Other standards refer to the mediator’s obligation to take “affirmative steps to address a party’s lack of capacity to participate effectively in mediation.” Mediation Standards Checklist, Committee on Alternative Dispute Resolution, Association of the Bar of the City of New York (July 2000)(available at XX).
It is a matter of mediator ethics to take whatever steps necessary to help the parties participate in the process most effectively. For example, a mediator might “address obstacles to communication” by helping the parties manage the discussion of emotionally volatile issues. A mediator might help “build the capacity of the parties to make an informed decision” by calling recesses to ensure the parties remain alert and focused during the process. Or a mediator might recommend consulting with experts when the parties would benefit from more information about their options.
In the same way, providing disability accommodations to assist parties with physical access, communication and understanding is a part of meeting the same ethical standards that apply in any mediation.
While providing necessary accommodations for people with disabilities can seem challenging to the mediator, the lack of accommodation should not be confused with the lack of capacity to participate. Mediators should presume that people with physical and mental disabilities, like everyone else, have the capacity to participate in the mediation process with the appropriate accommodation. Their obligation, as mediators, to assess the needs of the parties and accommodate those needs to facilitate full and informed participation in the process is the same for people with and without disabilities.
This needs assessment continues for the mediator throughout the process. If at any point in the process, any party lacks the capacity to participate for any reason, the mediator must communicate with that party to determine what can be done to help restore the ability to participate. If there is no accommodation that will empower the individual to participate competently on his or her own behalf, the mediator should end the process.
Mediator James Melamed takes the mediator’s role of “building the capacity of parties” to a new level in his article, “Maximizing Mediation,” available at www.mediate.com (Dec. 29, 2002). He writes about the role of the mediator as “maximally assist[ing] each participant in the way they want to be assisted to most capably consider the situation and their options.”
Noting that parties to any given mediation have different personal needs, ideas, interests and abilities, Melamed supports the idea that the mediator is there to give “comparably maximized assistance” to each of the parties. He argues that empowering parties to make their best decision can never be done in exactly the same way for different parties. It should be done in the best way possible according to the actual needs of the individual parties.
The mediator’s role in enhancing the parties’ capacity to solve their problems is a foundation principle of mediation. As the field grows, groups with whom most mediators have had little contact, such as people with disabilities, are seeking mediation with increasing frequency. How mediators think of their roles regarding the parties’ empowerment and self-determination will be influenced by their interactions with these new parties. Certainly, it will present a challenge to go beyond what is comfortable and familiar to them in meeting parties’ needs.
In accepting the challenge, mediators will contribute not only to their own professional growth, but also to the development of mediation as a tool for individual empowerment extending far beyond the mediation process.
Copyright © 2003 by the CPR Institute for Dispute Resolution, 366 Madison Avenue, New York, NY 10017-3122.
The CPR Institute for Dispute Resolution is a nonprofit initiative of 500 general counsel of major corporations, leading law firms and prominent legal academics in support of private alternatives to the high costs of litigation. Organized in 1979, CPR develops new methods to resolve business and public disputes by alternative dispute resolution (ADR).
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