Mediation In Court Of Protection Disputes

Court proceedings take time to conclude and if the parties involved are not able to reach agreement, the issues in dispute will be determined at trial. This is just as much the case in the Court of Protection even though there is not always a “winner” and “loser” as there is in a civil claim. Settlement can come around in a number of ways including written offers, inter-party discussions, and round table meetings. One more formal method of seeking to achieve settlement is engaging in mediation.

What does mediation involve?

Mediation is a very structured form of dispute resolution that can take place at any time during a dispute. It takes place in private (nothing that is said at a mediation can be spoken of in open proceedings), and although most parties are represented at mediation for a full day, it usually works out much quicker and cheaper than going to Court for a fully contested hearing.

Mediation involves the use of a trained mediator who will be jointly instructed by all parties. The mediator will attempt to explore with the parties whether there is a form of compromise that is possible and this is achieved by having all parties in the same location but in different rooms, and speaking with them all individually and in turn.

Mediation is already encouraged in civil matters (to the point of parties who unreasonably refuse to be penalised on costs) and is often an effective way of resolving a dispute. If an agreement is reached at mediation and recorded in a formal agreement, it spares the need for the parties to attend a contested Court hearing and therefore saves them the legal costs that will be incurred as well as the risk, delay, and stress of going to Court.

Mediation is now being promoted in other areas to help resolve disputes, such as the Court of Protection. The Office of Public Guardian (OPG) has over the last couple of years been investigating the use of mediation in Court of Protection matters and is piloting a free mediation service, which the parties can take part in earlier on in the life of a dispute. Privately engaged mediators are being engaged in Court of Protection matters also, and this is now something that we should expect to see frequently in Court of Protection disputes.

The Court of Protection is a specialist Court that will make certain decisions on behalf of people who lack the capacity to make those decisions for themselves. Anybody interested in the welfare of that individual can become a party to a Court of Protection dispute. Quite often, Court of Protection disputes arise between relatives of the Protected Party (P).

Family disputes can often come about when decisions need to be made on behalf of the Protected Party and a divergence of opinion exists as to what may or may not be in the Protected Party’s best interests, or when no decision can be made at all due to a deadlock on views between family members, or between family members and other bodies such as the local authority. Sometimes the issues can be particularly complex and an abundance of evidence is produced in the Court proceedings, and of course, in complicated cases, one hearing alone is rarely enough to decide matters.

Benefits of mediation in Court of Protection matters

The benefits of mediation in Court of Protection matters are that:

If the parties to a dispute consent to taking part in mediation, then the Court will allow time for it to take place before the case goes to hearing.

The OPG are currently piloting a mediation scheme in cases involving aspects of the Protected Party’s property and financial affairs (e.g. gifting, disputes between attorneys, statutory Wills) and it is anticipated they will publish a report on this once this has come to an end. It is likely this service will be provided by the OPG free of charge and independent experienced mediators will be used. Whilst this will be ideal for lay parties, particularly in small value disputes, it will not cover health and welfare disputes as the OPG rarely becomes involved in these and therefore mediators will have to be engaged privately in these types of cases.

However, due to the sensitive nature of some Court of Protection disputes, mediation may not always be the most appropriate approach. The OPG considers that mediation will not be appropriate in the following circumstances:

Comment

The OPG has not yet provided a date that the pilot will conclude or a date when this service will be available on a wider scale. There is an understanding that bringing proceedings in the Court of Protection is timely and costly, therefore it should be accepted that mediation will be offered by the OPG in the near future. However, more widely, mediation will become a more prevalent feature of Court of Protection cases and it will be interesting to see how it is used in different types of disputes.