I have been retained to conduct mediation with seniors “John” and “Susan” – and John’s adult children – to negotiate a marital settlement agreement between John and Susan and an estate plan for each of them in the context of the couple’s divorce. Susan and John are each represented by lawyers. In preparation for the mediation, as is my practice, I spoke with the lawyers and, thereafter, met separately with John and Susan and with John’s children.
During the meeting with Susan, I observed behavior that raised concern about her mental capacity. In a previous meeting, John’s children warned me that Susan sometimes affects confusion and memory loss as a way of manipulating the situation and others.
The issue of capacity has not otherwise been raised, and I am wondering whether I should raise it and, if so, to whom and how?
I appreciate your help.
– Barbara
Dear Barbara,
One of the major distinctions of elder mediation is the heightened concern about whether participants are capable of embodying the fundamental principles of self-determination and voluntariness. Of course, this issue can be a concern in any mediation, but it is more common to encounter it in elder mediation.
First, an important note about capacity. We define it in the particular, not in the abstract. And it always involves an analysis of capacity for what? For being in mediation? For entering into a contract? For creating an estate plan? For consenting to health care? And the standards for judging capacity vary in their particulars by jurisdiction.
So, capacity is a big topic. Nevertheless, I think I can be helpful to you in this limited space by covering the first two steps of resolving an ethical concern:
- Recognize the problem
- Explore whether it is possible to eliminate the problem
Although you did not articulate your problem as an ethical issue, your discomfort let you know something was not right, thereby completing Step 1.
Step 2 – exploring whether you can eliminate the problem – may allow you to resolve the issue. Raise your concern with Susan’s lawyer Mary. Ask her to take the laboring oar in determining whether capacity is an issue and, if it is lacking, that she work with Susan to implement the necessary protections. If Mary is experienced in trust and estate matters, this will be familiar territory for her.
If Mary concludes Susan has the requisite cognitive ability based on an assessment by a qualified professional, chances are you will be reassured, and the problem will have been eliminated.
If Mary concludes through direct observation or an assessment by a professional that Susan lacks capacity and Mary puts safeguards in place, chances are you can breathe easily and move ahead with the mediation, as well.
If Mary determines Susan possesses the requisite capacity to make the decisions she will face in the mediation, you will either defer to Mary’s judgment or you will remain uncomfortable, in which case you are still at Step 2, and need to explore other means by which to eliminate the problem.
Here are a few additional suggestions for Step 2, round two:
- Explore with Mary the basis of her conclusion, which may put you at ease;
- If you are not reassured, meet again with Susan to get a second impression, which may alleviate your concerns;
- If you remain worried, suggest to Mary that Susan’s cognitive ability be assessed and discuss with her how to approach Susan; and
- If Mary refuses to have this discussion with Susan, suggest to Mary that you discuss it with her.
If you reach a dead end, you will need to decide for yourself whether going forward will violate mediation ethics. If you face this question, I suggest you enlist the help of a trusted mediator colleague as you seek the answer.
– Dana
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