Following a pilot to assess the impact of mediation for Court of Protection dispute resolution, we hear from Consultant John Gorner on how this may change the future of contested Court of Protection matters.
Understanding mediation
Mediation is one form of Alternative Dispute Resolution (“ADR”). ADR is the general term used to describe various ways of resolving disputes without going to Court. The Government and the Courts want to encourage parties to disputes by way of ADR; it is seen as a more cost effective way of providing access to justice.
Mediation is probably the most common form of ADR and involves an entirely independent (and thus neutral) third party helping the parties to arrive at a mutually acceptable outcome.
The mediator is usually a specialist in the relevant area of law, will have received specialist mediation training and may be a member of a relevant accredited body.
Success rates of mediation are very high, and while this form of ADR is common in family law and inheritance disputes, the introduction of mediation to Court of Protection disputes is more recent.
Mediation for Court of Protection
The goal of mediation in Court of Protection disputes is for the conflicting parties to come to a mutually acceptable agreement that is in the best interests of the individual who lacks the capacity to make their own decisions – the ‘protected party’ – without going to Court. Any such agreement must then be approved by the Court to ensure that the terms of the settlement are in the best interest of the protected party. The Court then make an Order to confirm.
With Court of Protection disputes being such a specialist and sensitive area of law, it is important that the appointed mediator is an expert in relation to both the relevant area of law, as well as the particular requirements and sensitivities of Court of Protection disputes. This will increase the chances not only of a settlement being agreed, but also of the terms of any settlement being approved by the Court.
Regardless of who the disputing parties are, there must be someone involved to represent the protected party by participating in the mediation on their behalf, as a ‘litigation friend’, ensuring the protected party’s best interests are protected. Often this person will either be a specialist solicitor or, if not, will instruct a specialist solicitor to attend the mediation.
As a result, there may often be several parties and their legal representatives at the mediation. Solicitors dealing with this type of case are used to this and their experience helps smooth the process.
A mediation is usually concluded within a day, albeit often a long and tiring day. A successful mediation usually leads to an earlier conclusion to the case and at much lower cost than going to Court. The parties usually feel a huge sense of relief if and when terms are agreed.
Factors to consider
Going to Court is very costly and mediation is usually a much more cost effective route to resolution if successful.
At present it is common for the fees for a dispute to be paid from the assets of the protected party. The Court, however, can diverge from this normal position. The parties need to conduct themselves with care and take legal advice in order to ensure the Court diverts from this usual course and orders them to pay some or all of the costs personally. Refusing to engage in ADR generally or mediation in particular may be a factor in the Court deciding to vary from the normal costs order.
With an ageing population and an increased prevalence of relevant health conditions adversely affecting mental capacity, there appears to be a steady increase in Court of Protection disputes and an increase in the proportion of such cases being referred to mediation or other forms of ADR.
Speak with an expert
If you are involved in a Court of Protection dispute, you should take legal advice from a specialist solicitor.
Our team are here to help and once they have a detailed understanding of the dispute, they can advise on the best approach.
Get in touch with our Dispute Resolution Team on 0161 969 3131 or fill in our confidential contact form here.