The extent of mediation’s use in the Court of Protection (CoP) is something of an unknown. A practitioner-led mediation scheme is currently being piloted, providing access to highly skilled mediators at legal aid rates and Dr Jaime Lindsey is currently carrying out the independent evaluation of it. The Office of the Public Guardian also recently carried out a mediation pilot for certain cases and Dr Lindsey gives her insights in this guest blog.
These schemes suggest that there is an appetite for mediation’s use in this challenging area of law, perhaps because of the evidence from other areas that mediation can help to improve relationships, reduce costs, lead to quicker resolution and improve participant experience of dispute resolution. However, while we know that mediation is happening on the ground in the CoP, there is very little information about what it involves, who takes part, how successful it is or what participants feel about it. With that backdrop in mind, I have sought to research the role of mediation in this area, starting with a roundtable of professional stakeholders held in June 2020. In the recently published report of that roundtable, I provide some background context to CoP mediation and highlight some of the key emerging themes from the professional stakeholder discussions. This report is a starting point for analysis of CoP mediation, drawing on the important work already done by Charlotte May, a solicitor and mediator, whose research started the ball rolling for analysis of CoP mediation in the UK. I hope that my report highlights some of the key issues that arise and will provide some direction to future work undertaken in this area.
The roundtable brought together a range of professional perspectives including lawyers, mediators, academics, policy makers, members of the judiciary and others. The roundtable was held under the Chatham House Rule, which means that individual participants will not be identified, implicitly or explicitly, publicly. It included discussion of a wide variety of aspects of mediation, from the role of mediation in improving P’s participation (P being the subject of the proceedings), to which issues are most appropriate for mediation, who should fund mediation, the various advantages and disadvantages, and discussions about the use of virtual mediations during the pandemic.
Five overarching themes were identified from the discussions. First, that there is a degree of professional perspective conflict on mediation’s role in the CoP. This means that lawyers and mediators tended to diverge on the value and priorities of CoP mediation. Second, that there are clear process benefits of mediation, such as flexibility and informality. Third, that the nature of the agreement reached is vital in the CoP context. In this respect, it was seen as essential to ensure that agreements are scrutinised to ensure they are in P’s best interests. Fourth, that P’s voice and participation must be central in any expansion of CoP mediation. Finally, the issue of accessibility of mediation was a key theme, whether that be accessibility in face-to-face settings or accessibility through virtual platforms.
Opportunities and challenges
Clear positive reflections on CoP mediation included: mediation’s potential to improve relationships between parties; that it can be a better form of resolution; and, that its processes are more flexible and informal. Potential challenges of CoP mediation included: involving disabled participants; suitability of cases, for example where there are power imbalances or participant vulnerability; safeguarding concerns; the potential for mediation to create delay in resolution; and, concerns about substantive justice, for example whether the outcome of mediated agreements are in P’s best interests.
The report concludes that it will be important to gather more evidence about mediation’s use in the specific context of the CoP, prioritising particular areas as emphasised by roundtable participants:
Thank you to everyone who took part in the roundtable, as well as the Socio-Legal Studies Association for funding and supportingthe event, including through the transition to the virtual spaceduring a difficult period of time. A full report of the roundtable is available here. Please get in contact with me if you would like to discuss any aspect of the report further or would like to take part in any future research related to this area (firstname.lastname@example.org).