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Publication Date

2001

Abstract

The Anglo-American legal system, based as it is on an adversary system of justice, assumes that two or more legal combatants, capably arguing their respective positions, can best ensure that the correct answer will become apparent to a neutral decisionmaker, the judge. The system assumes competent parties with adept legal representation, presenting their respective sides of the case with little involvement by the judge. This ideal can be difficult, even impossible, to reach when one party is demented.' Indeed, in such a case the problem with this traditional legal model is even deeper-there may be no clear adversarial distinction between positions, but only a shading of views among a group of participants. Many times the other participants in the system respond by treating the incapacitated person in a paternalistic manner rather than the adversarial one upon which the system is designed. There must be a recognition of the shortcomings of the adversary system as the mechanism to resolve certain types of disputes. What limited recognition there has been has led to the rise in alternative dispute resolution-whether informal resolution such as a third party making a phone call, or more formal resolution, such as mediation, negotiation, or arbitration of a dispute. Alternative dispute resolution can work quite well to resolve certain kinds of disputes when one party is demented. However, the rules governing lawyers are primarily for adversarial situations. Thus, the rules are simply inadequate for those situations when a party is demented, and fail to provide guidance to practitioners seeking a pathway through the tumult of dealing with a demented client.

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