Originally from Alternatives to the High Cost of Litigation

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“In order for the mediation process to work, the parties must be able … to give voluntary and informed consent to any agreement reached.” ADA Mediation Guidelines, D. Party Capacity 1. (available at https://bit.ly/ADAMediationGuidelinesWeb).

The Model Standards of Conduct for Mediators (2005) (available at https://bit.ly/ModelStandardsforMediators) note, in Standard I. Self-Determination that “[a] mediator shall conduct a mediation based on the principle of party self-determination. Self determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”

We must distinguish between the capacity to give voluntary and informed consent to any agreement reached and the capacity to participate in the process. Each requires careful attention.