This post was written by Alex Troup, barrister and mediator at St John’s Chambers, and was first published on the Court of Protection Handbook blog, and is reproduced with kind permission.
[Even though COVID-19 may be making everyone rethink how conventional proceedings unfold in the Court of Protection, it does – or should not – detract from the importance of mediation. We are very pleased to host here a guest post by Alex Troup of St John’s Chambers, Bristol, outlining his experience as a mediator under the Court of Protection Mediation Scheme which is currently up and running on an informal pilot basis].
As one of the panel mediators on the Court of Protection Mediation Scheme, I thought that I would take the opportunity to tell you about a recent mediation which I conducted as mediator under the Scheme and which resulted in a successful settlement of a case which would otherwise have gone on to an expensive, stressful and time-consuming trial.
The case in question happened to involve a property and affairs dispute, although in principle health and welfare cases can be equally suitable for mediation under the Scheme. But I would like to focus not on the details of the case, which remains confidential, but instead on how the Scheme worked in practice.
There are 20 panel mediators on the Scheme, all of whom are experienced mediators with expertise in the field of mental capacity. You can engage a panel mediator simply by contacting them directly using the contact details available on the Scheme website. The parties in my case contacted my clerks who made the necessary arrangements. The great advantage to the parties is that each and every one of the panel mediators has agreed to act at a reduced rate of £100.80 per hour plus travel expenses, which is in line with legal aid rates. So the process is very cost effective.
What is more, we mediators are perfectly happy to travel. The mediation I was involved in took place in the far north of England. The fact that I am based in Bristol did not matter: I simply travelled up the day before and stayed overnight in a local hotel. The mediation took place in a neutral venue which had been agreed by the parties. We started at 9am prompt and we finished by 5pm. The mediation took the form of a shuttle mediation so the parties themselves did not have to meet at any stage, although we did have a number of lawyers’ meetings which proved extremely useful.
A key issue for any mediation is when it takes place. A mediation under the Scheme can only take place once proceedings have been issued in the Court of Protection. In our case, the mediation took place shortly after a directions hearing had taken place at which directions were given leading towards trial. That meant that the mediation took place before the parties had gone through the formal process of disclosure and exchange of witness statements, but it was felt – as it turned out, correctly – that there was already sufficient information and documentation available to allow the parties to negotiate a settlement. The costs of disclosure and witness statements were therefore avoided.
One of the features of the Scheme is that the parties must find a way to allow P to participate in the mediation process. In our case, the Official Solicitor had been appointed to act as P’s litigation friend and so she was able to promote P’s views and wishes. The Official Solicitor’s barrister did not attend the mediation in person but spoke by telephone to the parties at various key moments during the day and was involved in the drafting of the settlement agreement before it was signed.
Another feature of the Scheme is that there is a good deal of helpful documentation available on the Scheme website to guide the parties (and indeed the mediator!) through the process. This includes checklists, a draft proforma mediation agreement, and questionnaires for participants. Because any settlement will have to be approved by the Court of Protection as being in P’s best interests, the documentation also includes an invaluable checklist for what will need to be included in the draft order.
Overall, I thought that the mediation worked extremely well. In many ways it felt like any other kind of mediation, albeit with variations to reflect the fact that it concerned an incapacitated individual whose wishes and views needed to be taken into account and that the agreed settlement would need to be approved by the court. The feedback from the parties was very positive and there is no doubt that it was a cheaper and more efficient process than litigation.
I urge those of you who have not yet tried a mediation under the Scheme to give it a go. The mediation process is flexible and can be moulded to suit your particular case. The Scheme is user friendly and far less daunting for clients than the formality of Court. Many Court of Protection cases are eminently suitable for mediation, and a speedy and cost-effective resolution at mediation is usually not only in P’s best interests but also the best interests of all of other parties involved in the dispute. Full details of the Scheme can be found on its website which can be found here: https://www.courtofprotectionmediation.uk/