Diminished capacity is a complex and difficult concept. From statutes and cases referencing “incapacity” or “incapacitated person” to “incompetent” or “disabled” or “mental illness,” encountering an individual with diminished capacity can arise within and outside of mediation. A party’s capacity should be considered in variety of contexts, whether the impact of traumatic events to medications to health conditions, age, or other socioeconomic or political factors.
In mediation, a party with diminished capacity can present difficulties for both the attorney-advocate and the mediator in the context of self-determination, a core principle of mediation. Self-determination is “a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome” at any stage, including mediator selection, process design, and participation in the process.
A person’s socioeconomic status can include variables such as income, education, occupation, geographic location, and even ethnicity or religion. Understanding a party’s status is essential to determining whether a party can make free and informed choices. For example, a party with limited education or limited means may lack capacity to understand legal theories to determine whether the risks of litigation outweigh the risks of resolution. In the political context, press coverage of events such as police shootings may impede a party’s ability to make an informed choice whether to resolve a case involving claims of excessive force.
The Model Rule of Professional Conduct 1.14: Client with Diminished Capacity contains significant guidance for assessing the potential for diminished capacity. The rule requires an attorney representing a client with diminished capacity to maintain a “normal” client relationship “as far as reasonably possible.” Against this backdrop is the attorney’s obligation to protect confidential communications, and whether the client can make necessary decisions about representation.
In determining whether the attorney-client relationship may be impeded due to client capacity, attorneys should consider any impairment the client may suffer, “whether because of minority, mental impairment or some other reason.” If the relationship may be impeded, the attorney should evaluate whether the client “is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s interest.” If there is a substantial risk, “reasonably protective action” may be required. Protective action may involve consulting with family members or other professionals. In some situations, protective action may require the appointment of a conservator or guardian ad litem. In deciding whether protective action is required, attorneys should consider multiple factors, including medical limitations, the nature of the dispute, and the party’s education.
For a mediator, having a pre-mediation conference with an attorney or a pro se party is an essential first step in determining if a party’s capacity may be an obstacle to self-determination. In many situations, pre-mediation communications are confidential consistent with the mediation process.
If pre-mediation communications are not confidential, attorney-advocates need to consider whether their duty to maintain confidential information prevents disclosure to the mediator of a client’s diminished capacity. Even when pre-mediation communications are confidential, attorney-advocates should consider whether the disclosure “of the client’s diminished capacity could adversely affect the client’s interests.”
Before an attorney-advocate makes a final determination not to proceed with mediation because of a client’s diminished capacity, the attorney should consider potential protective measures, including engaging a therapist, consulting family members, or delaying the mediation to see whether circumstances sufficiently improve to allow self-determination. If the attorney-advocate has not made such determination but the mediator learns during a pre-mediation conference of a party’s limited capacity, the mediator should discuss whether to have a family member or some other professional present at mediation. A co-mediator, whether an attorney or a therapist or other professional trained in mediation, may be an appropriate consideration.
Even when there is no concern about diminished capacity pre-mediation, capacity deficits may arise during mediation. For example, a party may suffer situational diminished capacity by having to revisit a traumatic event during mediation. If so, options may include: 1) extended breaks; 2) redirecting the conversation; 3) recessing mediation to permit clarification or improvement of circumstances; or 4) recessing mediation to allow the party to seek other resources. Standard I of the Model Standards of Conduct for Mediators provides that “where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.”
