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Mediation – the human element
December 5, 2022
Helen Curtis reflects on research into how mediation works for people who lack mental capacity.
Mediation exists as a process through which the parties in dispute can engage in joint problem solving and decision-making with the aim of facilitating a resolution. In cases where the dispute concerns ‘P’, a person who lacks mental capacity to make a specific decision, a number of considerations arise. These include the question of whether lacking capacity to make a specific decision also means lacking capacity to participate in mediation. Certainly there is evidence that mediation can lead to better working relationships between individuals and statutory bodies. In YH v Kent County Council and others [2021] EWCOP 43, Mr Justice Keehan observed that ‘YH and the local authority engaged in mediation which resulted in a substantial degree of agreement about the future care plan for CB [‘P’]’. However, it is noted that CB was neither present nor represented at the mediation.
In the report Evaluation of Mediation in the Court of Protection published in September 2022 Dr Jaime Lindsey and Gillian Loomes-Quinn examined the factors at play in mediations where P lacked capacity to make decisions about their property and affairs and other aspects of their life. The authors summarise their findings as follows:
- 33% of respondents said it was cost effective to take their case to mediation
- over 60% stated that their dispute was resolved sooner via mediation than if the case had continued to court
- full or partial agreement was reached in all the mediations
- 75% indicated some degree of improvement in working relationships
- 33% said they would be prepared to use mediation again for Court of Protection cases
Six mediations were conducted during the evaluation. P did not attend any, although three respondents indicated that P participated in less direct ways – eg by being represented at the mediation or via a meeting with the mediator. The most common reason given for P’s lack of participation was lack of capacity, but as Lindsey and Loomes-Quinn note, this ignores the possibility of P to lack capacity in respect of the subject matter of the case but to retain capacity to engage in mediation.
While the sample size was small, in part due to the pandemic, the findings indicate the level of satisfaction in the process of mediation. Mediation outcomes in this area of dispute must be in accordance with P’s best interests and reflect the principle of least restriction. That stipulation is highlighted because, as noted in the research, P is rarely if ever physically present at mediation in these cases and it is necessary to find out as much as possible about P’s wishes and feelings before the mediation takes place. There are specific issues in respect of exploring P’s capacity via the mediation process which may involve the court. Where P does lack capacity, the areas in P’s life which arise for decisions are framed as best interests decisions. The parties seek to formulate an agreement through the mediation process in accordance with and in P’s best interests.
The reasons for the high level of satisfaction in these mediations give cause for optimism. A sizeable cohort of the respondents indicated that the agreement reached at mediation was better than they had expected. Given the high level of satisfaction, the authors recommend – among other points – both that (a) the Court of Protection should develop a mediation information scheme to provide participants with general information about mediation to improve awareness and understanding of it and (b) that a court-authorised mediation scheme should be piloted with judicial endorsement from the Court of Protection. Additionally, the authors recommend that further research should be carried out to compare mediated and non-mediated cases within the Court of Protection.
It is against this backdrop that Dr Lindsey’s next research project is welcomed, that of considering the experiences of participants in mediation of medical treatment disputes concerning adults and children. Funding from the Economic and Social Research Council will enable the project to gather evidence in the coming years which will include how mediation can reflect or reinforce existing power imbalances between parties, before reporting in 2024.
The strength of the mediation process, recognised by many mediators, is that it offers parties to a dispute a safe space to speak informally, particularly concerning sensitive issues. A significant challenge in serious medical treatment cases in particular, however, is that of time. This relates not just to the amount of time available to the patient, their family and the clinicians, but the time in the dispute at which an independent mediator is brought into the communication before parties form differing or opposing views. The issues at stake are fundamental – literally life and death. The emotions surrounding this situation are inevitably strong. The way in which information is heard and processed at a time of heightened emotion requires more time to be available when the reality in a busy hospital is that more time is an unavailable luxury. How this specific difficulty is met could include the use of an independent mediator who can inject listening time into the dialogue and generate space in which concerns can be acknowledged and explanations exchanged. This does not always produce agreement, but it does provide an opportunity to genuinely listen to another point of view. The time at which this is more likely to be beneficial is sooner rather than later.
There is already judicial encouragement for mediation in serious medical treatment cases. Mr Justice Francis made his view clear in Great Ormond Street Hospital v Yates, Gard and Charles Gard (by his Guardian Ad Litum) [2017] EWHC 1909 (Fam) when he said,
‘It is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee’.
Dr Lindsey’s project in this important area builds on existing research on mediation generally and will consider whether mediation can be a form of therapeutic justice in medical treatment disputes. Highlighting the impact of mediation is timely given the current promotion of mediation within the civil justice system generally. It is anticipated that examining the use of mediation in the context of medical treatment disputes will serve to illustrate these crucial distinctions and may provide important lessons which can be utilised in other areas of mediation.
