By Charlotte May
This month a new report by Charlotte May was launched to address the question ‘Where are we in the UK in Court of Protection mediation?’
The key and fundamental difference in mediation in the CoP relates to a person’s capacity. In these cases mediation works towards a negotiated agreement on a specific dispute or issue which relates to ‘P’, namely a person who has been assessed to lack capacity to a make a specific decision, within the meaning of the MCA 2005.
Where a person ‘P’ lacks capacity to make a specific decision for themselves, the key principles of the MCA govern how decisions are made, including how disputes are resolved. Where there is a dispute between family members, professionals, and/or private or public bodies responsible for the provision of care or medical treatment, mediation can assist to resolve disputes in accordance with a person’s best interest and in a way which is least restrictive.
The primary research aim was to gather and present evidence on the use of mediation in the Court of Protection (‘CoP’) and to seek views on pertinent questions. Case studies were gathered to illustrate the benefits, successes and challenges.
Regarding when is the best time to mediate, 76% of respondents suggested it should take place at an early stage – as soon as possible or before proceedings. However, in the case studies it was reported 64% of mediations took place during proceedings.
The majority (71%) thought professionals dealing with a range of CoP disputes had a ‘partial awareness’ of the benefits and risks of mediation and 25% considered they were ‘not aware at all’. Lack of awareness was considered by 80% be a major obstacle to CoP mediation because ‘not much is known about it by practitioners’, ‘there is a lack of awareness of how successful it can be’, ‘some have anxiety it will ‘weaken’ a case’ and ‘often people feel it is too late once you are in court’. 72% considered the parties’ lack of awareness about mediation was an obstacle to the parties themselves engaging in mediation.
Rates of agreement
The rate of agreement in the reported cases was high, with 78% of reported cases reaching an agreement either during or following mediation. Reasons for lack of agreement being reached included entrenched positions, too many parties and too little time, and allegations of financial abuse and fraud.
Case study issues
The issues in dispute covered in the case studies included residence, care, contact, finance and property, statutory wills and medical treatment. Residence was the most frequently cited, (at 59%), care arrangements (56%) and contact (44%). Almost one-third of cases involved finance and property.
Challenges and frustrations
Whether mediation was successful or not, in the specific mediations in this research, 85% of participants stated that the biggest challenge by far was entrenched positions, with others citing: dysfunctional family dynamics (56%), lack of communication between the parties (48%), verbal aggression (33%), imbalance of power (29%), time taken to set up the mediation (15%), physical aggression (4%) and long geographical distances between parties (4%).
Advantages and Benefits
The participants considered mediation was beneficial and advantageous in a variety of ways: it narrowed the issues (73%), reduced court time required to determine the issues (69%), developed dialogue between the parties (65%), reduced costs (61%), reduced time to reached an agreement (58%) and improved the relationship between the parties (42%) and ‘other benefits’ included:
‘It gave P clarity about contact and management of his finances and this produced a more relaxed and fulfilling lifestyle for him.’
‘Given the nature of this dispute, mediation was the obvious solution. It just seemed so incredible that the normal routes for dispute resolution actually involve processes that vastly escalate disputes rather than focus on resolution, understanding, improving communication and all those good things people in dispute need.’
‘Mediation enabled P to leave the care home which was supposed to have been just for respite and to live once again with one of her daughters, more speedily than if full court proceedings with a final hearing had been necessary to reach a final decision.’
The findings from this survey have helped to gain judicial support and shape the proposals for an evaluated CoP mediation pilot. The pilot is being launched later in 2019. It is important for an independent evaluation of CoP mediation to build on this research and provide a robust analysis of the benefits and opportunities, as well as the risks and concerns of more use of mediation in the CoP context.
Further blogs will a look at the participation of P in CoP mediation, obstacles, challenges and frustrations encountered, and case studies on mediations involving those with learning disabilities, elders, local authorities, private clients and the forthcoming CoP mediation pilot.
A copy of the full report is available here http://www.adultcaremediation.co.uk/Court_of_Protection_Mediation_Research_190531.pdf
Charlotte May is solicitor at Wiltshire Council and an independent civil, commercial and workplace mediator with an expertise in dealing with adult care disputes and a commitment to finding positive solutions. Charlotte acts as a mediator throughout the UK. She is currently engaged in a conflict resolution skills training pilot for social care professionals with local authorities.