Are there Limits to Client Self-Determination? Part 2

{3:36 minutes to read} In a previous post, I discussed the difficulty faced by a mediator when he or she needs to consider whether or not the client’s right to self-determination should be controlling in the face of an agreement that could be considered unconscionable.

In my initial consultation with clients, I try to draw the distinction for them between someone who:

• Is unable to fully participate in the mediation;

• Does not have the capacity to mediate or

• Cannot advocate for himself or herself.

Versus someone who:

• Has the capacity to make decisions;

• Is an advocate;

• Is a full participant in the mediation process.

Lacks the Capacity to Mediate

The first type of client could include someone who is the victim of domestic violence or is unable to advocate due to mental illness or substance abuse. While these matters might be mediated with the proper safeguards and a trained mediator, they present challenges that need to be addressed. If these challenges cannot be overcome, then the parties should not mediate and should seek a dispute resolution forum which would provide the support and protections they require.

Has the Capacity to Mediate

Here, I draw the distinction between what might be viewed as a decision most people would think is contrary to law versus a decision that most people would think is unconscionable and one which would render the Agreement unenforceable if challenged.

For example, in the former, I explain that I am not talking about the garden variety case where for whatever reason, one party is willing to give more than what might customarily be considered the norm, such as a party waiving the right to a particular asset, or paying or receiving more or less than what is generally accepted in terms of support. In those cases, the decision does not render either party destitute. As long as they are fully informed, I believe a client has the absolute right to make these decisions, even if I believe them to be poor ones.

On the other hand, when clients agree to terms that would not be upheld by the Court if the Agreement is challenged because the terms are so grossly unfair, I tell my clients that while I respect their right to self-determination, it does no good for them if I draft an agreement under those circumstances.