When parties seek to resolve disputes through voluntary mediation, there is a foundational assumption that the participating parties, and/or their representatives, have authority to participate in the mediation process, on their own behalf or on the behalf of another party. Further, there is a presumption that if a settlement is reached, the participating parties have the authority to enter into and execute a binding settlement agreement. They have voluntarily chosen to work with a neutral mediator to resolve their issues, they are motivated to find resolution, and any final agreement reflects a mutual decision to achieve closure.

But what happens if one of the parties is unable to understand the process, is not legally capable of entering into a contract, or otherwise does not have the capacity to participate in the process? How does the mediator traverse this complicated territory, and is any resulting settlement agreement enforceable?

Potential Concerns