On 1st October 2019, a nationwide mediation pilot was launched to run for approximately 18 months for cases which have been issued in the Court of Protection. This was foreshadowed earlier in the year at the Roundtable event. Dr Jaime Lindsey of the University of Essex will lead the independent, formal evaluation of how Court of Protection proceedings are impacted by mediation.
The Court of Protection regularly makes best interests decisions for the person who lacks mental capacity (referred to as the protected party or ‘P’). Mediation in this context likewise focuses on P’s best interests and explores with parties whether (i) there is agreement as to what issues are in dispute and (ii) what information can be shared with the court, given that mediation is a confidential process.
The Court of Protection Rules encourage parties to use ADR if the court considers it appropriate under its case management powers (r 1.3(3)(h)) and the Rules make provision for pilot schemes (r 2.6). More information about the mediators on the panel and the guide to the scheme can be found here. In order for the mediations to be evaluated, the mediators on the panel have agreed to mediate at a reduced hourly rate. The cost is still expected to be born equally between the parties.
Whether the dispute is suitable for mediation is covered in the guide to the scheme. In any event, P’s lack of mental capacity must have been established and P’s wishes and feelings have been ascertained before a mediation can be considered. If agreement is reached via mediation, a number of steps will need to be taken to conclude proceedings and meet with court approval. The guide suggests the following categories of cases are potentially suitable for mediation:
- health and welfare disputes including medical treatment, residence, care and support and deprivation of liberty
- serious medical treatment disputes
- property and financial affairs disputes
- mixed health and welfare and property and affairs disputes
It is crucial to note the difference between mediation, a Round Table Meeting (RTM) and a Best Interests meeting. It is only at a mediation where a wholly neutral person without a stake in the outcome is present. This ingredient can be extremely beneficial in diffusing what can be a fractious dynamic between the parties. The mediator can facilitate effect participation of all parties which is useful where continued communication after the mediation is needed.
There are several important features of the mediation pilot to be independently evaluated:
- the effect on P’s participation in the decision-making process as compared to a judicial hearing;
- how judicial time is affected;
- the difference in legal costs and costs to public bodies in mediation compared with legal proceedings;
- whether mediation leads to resolution of disputes at an earlier stage;
- The effect on working relationships between the parties compared with court proceedings.
The Office of the Public Guardian began its own mediation pilot in May 2018, to ‘encourage the use of mediation over court proceedings to settle disputes and better protect the adult at risk’. Where a deputy or attorney is in place, the OPG’s pre-issue mediation pilot should be considered if the matter has not already been issued.
In its recent business plan for 2019/2020, the OPG states that it plans to complete and evaluate the mediation pilot. It will be useful to see how mediation is taken forward by the OPG during the Court of Protection mediation pilot and ultimately compare the evaluations.