Mediation in the Court of Protection

A nationwide pilot mediation scheme is being run from 1 October 2019, to evaluate the impact of mediation on Court of Protection proceedings. Get in touch

Mediation is a voluntary process in which an impartial third party, a mediator, facilitates the resolution of a dispute with the aim of the parties coming to an agreement to narrow or settle their dispute.

A mediator facilitates communication, promotes understanding, focuses the parties on their interests, and engages the parties in creative problem-solving to enable them to reach their own agreement.

The aim of mediation

The aim of mediating a dispute that has been issued in the Court of Protection is to explore whether the parties can reach an agreement about what is in P’s best interests, and put this before the Court for approval (so the agreement becomes a Court order), rather than proceed to a contested trial. This means that the parties must agree firstly, on the issues in dispute and secondly, about what information from the confidential mediation can be shared with the Court.

The Pilot Scheme

While mediation is used to resolve disputes where proceedings have been issued in the Court of Protection, there has been little research into the effectiveness of it. However, in 2017 initial research findings on CoP mediation in the UK resulted in a working group being set up with a view to establishing a COP mediation scheme.

We anticipate that the scheme will run for around a year to eighteen months (start date 1 October 2019). It will be formally evaluated by academics at the University of Essex, led by Dr Jaime Lindsey. The evaluation has a clear set of objectives.

Further Reading

Scheme Guide

Mediations under the scheme will be conducted in accordance with the scheme guide.

Precedents

There is a suite of precedents for use in mediations conducted under the scheme, and they can be found here.

The pilot is not a formal Office of the Public Guardian, Ministry of Justice or HMCTS project. It is practitioner led. The Court of Protection, Office of the Public Guardian, the National Mental Capacity Forum, and the Ministry of Justice are aware of the project, and have been involved with it at different stages during its genesis. The project is designed to run alongside the OPG Mediation Pilot, which only applies to cases before they are issued in the Court of Protection.

Questions?

If you have a general question about the pilot, please get in touch with Holly Mieville-Hawkins at Enable Law in the first instance.