At NDR we only ever use facilitative mediation in CoP cases; to us any arbitration based model would risk P being bound to decisions that they would not have agreed to and subvert the role of the court. Our preferred model, sees our mediators spend considerable time getting to know the issues involved in the case, and visiting P themselves in order to get to know their situation, as well as the normal pre-mediation meetings with other parties.

Often mediation allows the parties to narrow the list of available options and get to what really matters. This narrowed list can then receive more court time, and avoid further dispute between parties; whilst this gives a cost saving for professionals, it also avoids further disruption to P.

Our specialist CoP mediators have all worked in the field, and come from a range of professions around The Mental Capacity Act and Deprivation of Liberty Safeguards including; Social work, Nursing, IMCA’s and Best Interest Assessors. Our team are used to working with vulnerable people and their relatives; we know that in any of these matters emotions are running high as everyone seeks to do their best for their loved ones.

We therefore have considerable experience at non-instructed advocacy ourselves, and have spent years developing our practice of working with those who cannot communicate as effectively. As a team we have worked in all sides involved and so are able to understand the dispute from all parties points of view. We can therefore ensure that P is kept at the heart of any dispute, whilst working towards a practical solution and way of moving forwards for P.

What started as simple disagreements over what is best for family members, quickly turn sour; the court process where family give evidence against family helps further this discord. This in itself is not in the best interests of P; if families are at war, they are distracted from caring for P together.

Perhaps this is one of the greatest benefits of Mediation, the process helps people to see each other’s point of view and brings parties closer together; not just families but the professionals around P who themselves at heart often care very much for the person at the centre of the dispute.

Mediation as a whole is very successful, many mediators report settlement rates of over 95%; if settled then the case will have had substantial savings with a resolution that all parties are happy with. If a mediation doesn’t achieve settlement, what we often see, is what was a substantial set of disputes to be decided, honed down into a few outstanding issues that still need court decision.

The benefits being not just that clarity is given as to what is needed for P, but that court time is still saved considerably; with big savings for all on legal fees. 

But there are other reasons to use mediation.

First and foremost, Mediation is recommended by the MCA Code of Practice;

15.9 Any case that can be settled through negotiation is likely to benefit from mediation. It is most suitable when people are not communicating well or not understanding each other’s point of view. It can improve relationships and stop future disputes, so it is a good option when it is in person’s interests for people to have a good relationship in the future.

The office of the public guardian also recommends mediation where there is a dispute around best interests, a capacity assessment is challenged or if there is disagreement about advance decisions. As well as the Social Care Institute for Excellence, and numerous mentions in case law. For example in D v R [2010], Mr Justice Henderson says ‘Cries out for mediation and a realistic settlement… A trial of the action is likely to be a painful and damaging experience for all concerned, and I repeat my hope that the parties will, even now, be able to come to a settlement.’

As highlighted by Mr Henderson, any court proceedings can be confrontational and leave a deep impact on the parties, CoP has the potential to be even more harmful. Here proceedings see family members give evidence against family, and can even turn professional against professional. What start as simple disagreements over what is best for P can lead to deep divisions between families, where families are at war they are distracted from P. Disputes over best interests of P, and proceedings around them can distract from and be counter to the best interests of P.

Mediation on the other hand, can build relationships. By parties taking control of decisions and working together in mediation, it is amazing what is often achieved, all of our mediators can think of examples where at the start of the day it was unimaginable to think that parties could work together at all, and by the end of the day, have these very same parties around the table, working out new and creative options together.

By using mediation, Local authorities and all parties involved, can see considerable benefits and expect to save time, money and valuable working relationships.