Howard looked depressed. His head hung low; his brow was furrowed; he spoke slowly and sadly. “This divorce has devastated me. I haven’t been sleeping; I can’t work; I can’t think straight; I don’t know what to do.” For the remainder of the hour, Howard, his wife, and I talked about his plans for staying safe and recovering his mental health.

His plans included an appointment with a psychiatrist the next day and continued weekly meetings with his therapist. Howard and his wife agreed that we should postpone the conversation about the terms of the divorce until Howard was feeling better. About two months later, Howard looking much better, though still sad, the couple returned to my office and sorted out the details of their divorce.

Many mediators believe they have an obligation to determine whether mediation participants have the capacity to mediate. I, however, support the view that a mediator should instead focus on facilitating participants’ competencies, at least when the mediator also vigilantly protects parties’ self-determination throughout the process. An Article from Conflict Resolution Quarterly, by Crawford, Dabney, Filner and Maida shares the view that facilitating mediation competencies makes more sense than determining capacity.

The most recent version of the Model Standards of Conduct for Mediators, approved by the American Arbitrators Association (AAA), the American Bar Association (ABA), and the Association for Conflict Resolution (ACR) provide:

“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. “

So why the confusion? Why the common notion that a mediator should make a determination and then screen out certain participants? To me, the screening view arises from the assumption that mediation is an adversarial process in which a mediator will push for settlement. With that understanding of mediation (which many mediators still have) it makes sense that it wouldn’t be fair for a person of limited capacity to be expected to defend himself against the mediator’s attempts to get a settlement. (Come to think of it, if I were in an intense conflict, I might not have the capacity to defend myself from one of those mediators). Further, the idea of assessing capacity arises from traditions in the fields of psychology and law (but much less so from the distinct field of mediation).

The Crawford, et al, article provides many rationales for the notion that mediators can support competency rather than assess capacity. Those include:

1. It’s not likely that mediation training can sufficiently prepare a mediator to make meaningful assessments of capacity.

2. The ethical obligation of a mediator to support party self-determination directly conflicts with a mediator making a decision about who can participate [In the transformative model, this focus on self-determination is of primary importance, as it’s the key to potential increased capacity for parties].

3. The concept of impartiality conflicts with the idea of a mediator making a determination about one of the parties.

4. The Model Standards say that a mediator should strive “to make mediation accessible to those who elect to use it.”

5. Protocols for determining capacity in the fields of medicine, psychology, and law include extensive procedures with multiple safeguards around their accuracy - these sorts of protocols are not feasible for mediation.

6. There is no universal understanding of what capacity means.

7. There’s reason to believe that mediation can be conducted in such a way as to address the needs of someone with dementia, for example.

8. Individuals have a right to be aware that they are being assessed - mediation protocols have never made it clear that mediators need to seek the consent of the parties first.

9. The concept of capacity does not take into consideration the reality that competencies fluctuate.

10. The concept of individual capacity disregards the interaction between the parties and with the mediator - since interaction is central to mediation, an individual’s capacity can’t be separated from the interaction with the others involved - the capacity of the group might be a better question, but still not one that the mediator should answer.

11. Mediators have an obligation not to discriminate based on disability.

Transformative theory suggests that somewhat diminished capacity is a natural symptom of conflict, is what brings parties to mediation, and is the very thing that mediation can help with. A mediator focused on whether parties’ capacities are too diminished, can not simultaneously focus on helping the parties’ capacities reemerge.

Howard, described above, didn’t need to be told by me that he didn’t have the capacity to mediate. Nor did he need me to tell him that he should address his depression first. He probably benefited from the opportunity to talk with his wife in a non-judgmental atmosphere about his mental state. He, with the help of his wife, made their own determination that Howard needed to address his depression first. Both parties, when they decided they were ready, returned to mediation and had a productive conversation.

In the words of the Crawford, et al article, “determining capacity limits parties’ access to the mediation process, abridges civil rights, reduces mediator effectiveness, and erodes fundamental principles of mediation.

Please share your comments and stay tuned for further discussion of exactly how mediators can facilitate competencies for all types of clients.

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by Dan Simons

Dan Simon teaches and practices transformative mediation in St. Paul, MN. He also writes the blog at The Institute for the Study of Conflict Transformation.