‘When you go to the airport to fly off for your holiday, do you insist on flying the plane?’. This question was recently posed in a different context but prompted me to think about the current mediation pilots, what is driving them and where will they land.
The Oil & Gas Authority (‘OGA’) pilot scheme aims to test the extent to which mediation can resolve certain disputes between oil and gas licensees, operators and infrastructure owners in the UK Continental Shelf. The stated aim of mediation within this pilot is to encourage parties themselves to resolve the dispute, rather than a decision being handed down to them by a judge (or indeed the OGA). The resolution of disputes is a shared aim between other mediation schemes. An earlier mediation blog in October 2019 mentioned both the Court of Protection (‘CoP’) and Office of Public Guardian (‘OPG’) Mediation Pilots in a different sector, both of which involve vulnerable people who lack mental capacity.
The Court of Protection Pilot Scheme currently underway is being independently evaluated by Dr Jaime Lindsey at the University of Essex. The Scheme is accessed by parties in circumstances where proceedings have already been issued in the Court of Protection. The parties choose from one of the mediators on the panel, prepare for the mediation by completing the questionnaire and raise any queries at the pre-mediation meeting with the mediator. Importantly, the wishes and feelings of P (the person who lacks mental capacity) must be ascertained prior to the mediation. Where settlement is reached, the agreed order is provided to the court for approval and proceedings concluded saving time, cost and stress.
As at many mediations, the issues which arise are not confined to those which are being litigated. So too with mediation in the Court of Protection. Even where there is no joint meeting in a virtual break out room, the fact that the parties are in the same cyberspace enables them to focus on issues which had been perceived as tangential. This can translate to a willingness on all sides to soften their stance even on positions which were previously firmly held.
The OPG pilot ran for eight months and concluded mid-2019. Its aim was to establish whether OPG-sponsored mediation improved the protection of the vulnerable people whose interests are safeguarded by the OPG. One positive indication is that as the service was facilitated by the OPG, the parties in dispute did not have to engage with each other over the practical arrangements including the identity of the mediator. Access to mediation was thereby less of an obstacle.
From the 74 cases which were identified by the OPG as potentially appropriate for mediation, 57 were referred for mediation. From the 57, 38 agreed to mediation and attended the session which resulted in a full or partial agreement in 24 cases. The remaining 14 cases did not reach agreement for a mixture of reasons. However, in a number of cases some benefit was still gained: ‘simply persuading people to engage with family members in the best interests of the adult at risk will inject a degree of benefit’.
Three aspects demonstrated the effectiveness of mediation:
The OPG is now waiting for the evaluation of the CoP pilot before determining the future direction of mediation for its own service. The timing of this is perhaps fortunate as Sir Geoffrey Vos, the Master of the Rolls seeks to remove ‘alternative’ from ADR and concentrate on ‘dispute resolution’. Once the outcome of the CoP pilot is complete and the OPG has had time to assess its own results, it is hoped that the conclusion will be to establish mediation as a recognised route for resolution – and take off.