Appointing Decision-Makers for Incapable Persons – What Scope for Mediation?

Abstract

Significant achievements have resulted from the creation of quasi-judicial boards and tribunals that determine whether a person with a mental disability is in need of an administrator or guardian. Informal hearings and a departure from strict rules of evidence makes processes for judicial decision or review of administrative decisions more accessible to the public. To the extent that the public is able to participate in an appropriate manner in these processes, the processes themselves, and the laws that establish them, have therapeutic qualities. As the many benefits of mediation have become better known and the process more commonly used in courts, tribunals and the community, there is a tendency to propose mediation for all nature of matters. At the same time, depending on the nature of the matter to be decided, mediation may be an inappropriate and even anti-therapeutic process. This article examines the appropriateness of mediation as a process for the determination of applications for the appointment of a decision maker for an incapable person and, using a series of case studies, examines the factors that indicate when mediation is or is not appropriate in this context.