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Party self determination and issues of legal capacity in ADR
| Podcasts, powerpoints and/or papers from the presentations are available to LEADR members and
Explore the meaning of legal capacity and how it impacts on the mediation or ADR process.
The aim of the workshop is to identify knowledge, skills and ethical issues relating to legal capacity in ADR practice. The discussion generated by the workshop will inform and guide future research by the workshop facilitators on capacity issues in mediation. The topic bubbled [in more ways than one!] to the surface during many Friday evening discussions on Margaret’s veranda when, whatever the starting point, the intersection of the concepts of capacity to make legally binding decisions and self determination created just the right amount of dissonance for repeated, sustained, lively discussion. This will be a facilitated workshop with audience participation through group discussion and plenary sessions. The workshop will draw on participants’ experience in a full range of practice areas including commercial, workplace, families and other civil disputes. The facilitators will use a short questionnaire and case studies as a catalyst for discussion. Podcast: Listen to Robyn and Margaretl talk about this session pre-kon gres (7 mins) >> |
This workshop focuses on one aspect of suitability for participating in self determining ADR processes: capacity to enter into legally binding agreements. It will explore the meaning of legal capacity and issues of
capacity arising in mediation and other facilitative ADR processes.
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By the time we’re all at ‘kon gres, Margaret will have more than tripled her meagre trainee pilot hours by flying for a week through the Gascoyne-Pilbara-Goldfields regions of WA. Robyn prefers to clock up her distance on foot, walking in the bush and anywhere that involves being out in the country. |
Professor Robyn Carroll (left)
Robyn Carroll is a Professor at the Law School, The University of Western Australia. Her teaching and research interests include Negotiation and Mediation, Contract Law and Civil Remedies and Family Law. She has published articles on a range of mediation issues including mediating with people who lack legal capacity, apologies, and power issues in mediation. Robyn is actively involved in the mediation profession through policy development, education and training activities and law reform. She is an accredited mediator (LEADR) with mediation experience in family law, workplace, equal opportunity complaints and guardianship and administration matters. Robyn is a volunteer mediator with Citizens Advice Bureau in WA and a sessional member of the WA State Administrative Tribunal.
Margaret Halsmith (right)
Margaret Halsmith is the Director and Principal Mediator of her mediation practice which is centred in her m’atelier: a converted 1920s house in inner suburban Perth . Since 1996 she has mediated a wide variety of two party and multiparty disputes for government, business, families and individuals. Her practice areas include commercial, workplace, families, child protection, franchising, inheritance, reparative, reunification and youth among many others. She also provides professional consultancy and support to mediators through clinical supervision, mentoring, training and debriefing.
Margaret is equally interested in the extent to which ADR processes provide opportunities for participants’ to rekindle their individual efficacy and collective agency as in the pragmatic aspects of the process and explicit outcomes for participants. She says that when one mediation reminds her of another, she will know it is time to requalify. ..or retire!
She is an active member of Australian and international mediation organisations. Margaret is the Australasian Chair of LEADR and a member of NADRAC, the Council which advises the Federal Attorney General on matters relating to ADR; a Director of National Mediation Conferences Ltd; a member of the IMI Independent Standards Commission and deputy convenor of WADRA.
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