Defining a threshold for client competence to participate in divorce mediation

The ultimate aim of court-ordered divorce mediation is to produce settlement agreements. Once ratified by the court, these agreements are legally binding and extremely difficult to modify. Courts assume that everyone is adequately equipped to mediate and, with increasing frequency, order litigants into mediation. Nonetheless, commentators have acknowledged that at least occasionally, a party may be unable to proceed. Currently, no standard exists for determining when a party lacks sufficient understanding and ability to participate in mediation, yet the legally binding outcomes of mediation are too important to leave a determination of competence up to chance. In this article, the authors propose a new legal standard, with a basis in current law and policy, for competence to participate in mediation.