What is the scope for using mediation in the Court of Protection? Current research has established a starting point for exploring this question and related issues such as when in the process mediation can be most useful, what training and expertise are needed for mediators in these cases, and what issues are and are not suitable for mediation. It has acted as a springboard to raise awareness and has been the impetus for a working group to be established to set up Court of Protection Mediation Pilot in the South Western Circuit.
The Court of Protection adjudicates disputes and makes decisions for people who lack capacity to make certain decisions for themselves. These cases are decided in accordance with the Mental Capacity Act principles of ‘least restrictive’ and ‘best interests’. The root of a dispute may be a family feud or a disagreement between relatives and public authorities who are responsible for the provision of care and accommodation and safeguarding those who lack capacity.
Applications to the Court of Protection can include a request for an order that the parties attend mediation. Once proceedings are issued, the court can consider whether all or any of the issues subject to application are suitable to be referred to mediation. The Court may order the parties to attend mediation and may decide whether it merely orders the parties to attend, or whether to include the words ‘with a view to reaching an agreement’. This does not mean that the parties are being ordered to come to an agreement. The court may decide to make such orders at an early stage or later in the proceedings.
The research: Phase 1
Phase 1 of the research involved a survey questionnaire to legal professionals, mediators, and the Official Solicitor to gauge the level of interest and experience in Court of Protection mediations. Responses were received from 25 respondents. In Section 1 of the survey, the respondents, who between have been involved in 80 mediations, set out their views on pertinent questions, such as when is the best time to mediate and what knowledge and experience should mediators have to deal with such disputes.
In Section 2 of the survey, in response to case specific questions, the respondents provided detailed information for over 25 case studies. In these cases, more than one-third of the mediations were ordered by the court, and in 62% of these, the court ordered the parties to attend and/or participate in mediation.
A detailed report of the Phase 1 findings is forthcoming, and in the meantime this summary gives a flavour of the findings extracted from the case studies.
The issues covered in case studies mediated ranged from residence (most frequently cited, with 59% of cases involving residence) to medical treatment and statutory wills (each raised in 7.4% of cases). Almost one-third of cases involved finance and property. Other issues in the cases mediated included Power of Attorney, Deputyship, holidays, and Deprivation of Liberty.
As to when is best to mediate, the majority of respondents suggested before or during proceedings; two-thirds of the cases reported in the survey were mediated during proceedings, with nearly one-third mediated before proceedings and a very small number following proceedings.
Role of P
In 79% of mediated cases P did not participate. In 21% of cases P participated with support, the majority with support from the Official Solicitor. Where P did not participate, his or her views were conveyed in the mediation by family members (36%), legal representatives (27%), social worker (27%) or other advocate or representative. In 58% of cases P was not represented (does this mean legally represented or any representation?).
An interesting picture emerges as to who funds mediation. In 48% of cases, the costs of mediation were shared between the parties, and in 37% of cases the local authority paid all the costs. The Legal Aid Agency contributed to costs in 15% of cases. In the remainder the costs were paid by the Health body involved (7%) or another body (7%).
The success rate in the reported cases was high, with 78% of reported cases reaching an agreement either during or following mediation. Written agreement was reached in 52% of cases, with a further 19% achieving written agreement following the mediation. Oral rather than written agreement was reached in 7% of cases. In 22% of cases there was no agreement. In most of those where an agreement was reached (59%), the terms of agreement were incorporated into a court order.
Reasons for lack of agreement being reached included entrenched positions, too many parties and too little time, and the existence of allegations of financial abuse and fraud.
Examples given of approximate cost savings of between £6,000 and £30,000 – the exact savings depend on length of case and when in the proceedings the mediation took place, as well as estimates of savings of judicial and court staff time, and time of counsel and local authority professionals.
Experience of mediators
The majority of mediators (89%) have experience of the Court of Protection.
Developing the research and pilot
Phase II of the research is proposed to include a survey of the judiciary. The research has been discussed at the court users’ group meeting and support has been expressed by the President of the Court of Protection, and the lead judge for the South West Circuit, for a pilot mediation scheme to be run in the South West Circuit. A pilot working group has been established and has identified the types of issues likely to be amenable to mediation, and at what stage:
- Standard health and welfare cases (including general medical issues) at pre-issue stage
- Property and affairs cases at post-issue
- Serious medical treatment cases at pre-issue
The working group considers mediation also has potential to have an impact in matters with litigants in person and where there has been a breakdown in communication between the parties.
The group agreed to draft a Practice Direction covering practice, screening and procedural requirements for four areas (each requiring a different approach under the legislative and practice frameworks in which they operate):
- Health and welfare, including Deprivation of Liberty and general medical treatment
- Property and financial affairs
- Serious medical treatment
- Mixed cases
Screening tools will be identified as part of mediation guidance and will look to research carried out in Canada as a starting point. Unlike the Canadian example, in which mediation was mandatory as ordered by the court, the pilot would involve voluntary participation in mediation. Pilot parameters will also be drafted, and it is hoped that the proposed pilot will involve academic researchers to help design the pilot.
Funding for the pilot has not yet been identified. Although it is likely that mediation costs will be funded either by the parties or by local authorities or the Legal Aid Agency (as indicated in the survey responses), the costs of designing, administering and evaluating the pilot will require funding.
A forthcoming article will set out the findings of Phase I in more detail.
About the author:
Charlotte May has presented the initial findings from phase 1 of the research upon which this paper is based. Charlotte is the Team Leader of the Dispute Resolution and Adult Care Team in the Legal Department at Wiltshire Council, where she has specialised in adult social care legal advice for over 10 years. She is an accredited Civil and Commercial Mediator (ADR) and specialises in Court of Protection mediation. Email firstname.lastname@example.org and www.adultcaremediation.co.uk.
 See Charlotte May’s Research Profile at https://administrativejusticeblog.files.wordpress.com/2015/10/current-research-profile-c-may-2.pdf and report of Phase 1 findings at http://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2017/04/170201-Initial-Findings-Phase-1-CoP-Mediation.pdf