The maintenance of disputant self-determination is among the most important and defining characteristics of mediation; to understand its preeminence, one need look no farther than the first tenet of the Model Standards of Conduct for Mediators. To exercise self-determination, disputants must possess the capability to participate effectively in the process, a topic of recent inquiry. This article will examine a few implications of self-determination for mediation practice.
Variously defined in the conflict resolution literature, disputant capacity deserves further attention across mediation contexts: while often considered relevant in only disability-related matters, the issue is fundamental to all mediation. For a good working definition many point to the ADA Mediation Guidelines, which advise, “[i]n order for the mediation process to work, the parties must be able to understand the process and the options under discussion and to give voluntary and informed consent to any agreement reached” (Section I.D.1). Let us explore further the relationship between self-determination and capacity, as both are addressed in the concluding phrase “voluntary and informed consent.”
Writing on adult guardianship mediation, Mary Radford (2002) observes, “The self-determination principle places a number of requirements on a mediator. Among these is the requirement that the mediator ensure that all parties have the capacity to participate in the process. A mediator is required either not to commence or to terminate a mediation if one of the parties does not have the capacity to participate. However, a determination of capacity is not an easy one to make, and the consequences of finding that a party is incapacitated are serious.” (p.648)
Radford strikes an important chord here, that of the difficulty of determining a party’s capacity to mediate. Erica Wood noted that in cases potentially involving persons with dementia, “Just as in the legal arena, there is no ‘bright line’ for capacity in mediation” (2001, p.809).
Whereas self-determination is critical to mediation, and assurance of that self-determination is a shared responsibility of the participants and the mediator/s, the mediation community should remain vigilant in promoting informed participation. When a mediator recognizes a substantial power imbalance at the table (like Justice Potter Stewart, I can’t define “a substantial power imbalance” but know one when I see it), or a participant for whom — or a dispute for which — mediation is not a fitting process, it is the mediator’s responsibility to address the issue.
The ethical obligations of mediators are many – and some, such as screening, are shared by other practitioners, such as convenors or intake staff — but only a few are shared responsibilities with the parties. One such shared obligation is that of collaborating with the party on developing ways to ensure full participation. The parties’ involvement in this process is critical to ensuring true self-determination.
The assessment of mediation readiness, or mediation capacity — and the subsequent planning of process adaptations or whatever other methods will ensure such capacity — is an ethical obligation of the mediator. This needs to be carried out through respectful screening processes and instruments, and by collaborative approaches.