On 1 October 2019, a group of legal and medical specialist practitioners launched a scheme to facilitate and support mediation within the Court of Protection (CoP).
The scheme is open to participants nationwide, and is available to all strands of CoP cases. The scheme s expected to run for 12 to 18 months and will be evaluated by Dr Jaime Lindsey at the University of Essex.
Participation is entirely voluntary, and mediation can happen at any point during the litigation process following issue. The matter will ultimately need to return to the CoP so that the court can consider and approve the outcome as being in the best interests of P.
The scheme seeks to obtain a good body of evidence to find out how mediation affects:
- P’s participation in the decision-making process, as compared to judicial hearing
- judicial time, as compared to legal proceedings including judicial hearing
- costs, including parties’ legal costs and the costs to public bodies, as compared with legal proceedings including judicial hearing
- the working relationship between the parties, as compared with legal proceedings
- other resources of those involved in CoP disputes. (For example, to what extent does mediation divert the time of the professionals from front-line services? Does it lead to the resolution of disputes at an early stage when compared to proceedings?)
The scheme has been developed with valuable insight and feedback from members of the judiciary, the Ministry of Justice, the Mental Capacity Forum and the Office of the Public Guardian.
To qualify for the scheme, a case must meet the following criteria:
- It must be issued in the CoP.
- A scheme mediator must be used.
- P must be able to participate in a meaningful way in the mediation, whether directly or via an independent representative .
- A set pre-mediation questionnaire must be completed by parties.
- Parties must agree to the mediation being evaluated
There are certain cases that may not be suitable for mediation, including matters where there is a dispute about P’s capacity and disputes where there are serious allegations of abuse.
Scheme mediators have agreed to carry out mediations at the legal aid rate of £100.80 per hour, to ensure that the scheme is fully inclusive. It’s suggested that the costs for the mediation should follow the case.
Awareness of the scheme is crucial if it is to suceed, and training is planned over the coming months.