COURT OF PROTECTION

PILOT MEDIATION PRACTICE DIRECTION SCHEME

INDEX PAGE

A Aims and objectives of the pilot 2

B The Mediators 2

C Aim of the mediation 3

D Types of cases to be on the pilot 4

E Size of pilot 6

F How will cases come on to the pilot 6

G How will the mediation be funded 6

H The mediation itself 7

I Participation of P 9

J Mediation agreements 10

K The Scheme administrator 11

L Evaluation 12

M Costs 13

N How will the scheme be consulted upon and promoted 13

O Timescales 14

P Documentation 14

ANNEX A

Members of the working group 15

1

A AIMS AND OBJECTIVES OF THE PILOT

1 The Courts have seen an exponential increase in Court of Protection claims being issued over

recent years. This is at a time when the Courts have had to cut their budgets. In all but the

most urgent of cases, parties can face many months wait to obtain sufficient Court time for

final hearings.

2 In health and welfare disputes, the cost of litigation in the Court of Protection to the public

purse is significant. The cost to front line services by resources (financial and in terms of

professional hours) being diverted into the Court process is also significant.

3 The human cost in being involved in adversarial litigation between parties who very often

have to work together in the best interests of P for many years to come, is unknown.

4 It is against this background that the working group (see Annex A) are working to set up a

mediation pilot scheme to evaluate whether and if so to what extent mediation, when

compared to litigation:

Saves Judicial time by resolving issues which would otherwise have to be resolved by

the Court at a final hearing, thereby easing the pressure on listing and on Court

budgets.

Saves the parties money by reducing or removing the need to incur the legal costs of

preparing for contested hearings, instead incurring the cost of preparing for a

mediation.

Represents a saving for public bodies involved in the disputes, by diverting the time

of the professionals involved from front line services to the mediation rather than

litigation.

Either improves or does not further damage, the working relationships between the

parties when compared to litigation, thus making future disputes less likely.

B The Mediators

5 For the pilot we suggest that there should be a panel of mediators (‘the pilot panel’). This is to

ensure that there is a uniformity of approach, and that all the issues that arise with respect to

the fact this is a pilot (i.e. evaluation) can be dealt with efficiently. This is something that will

need re-consideration if the pilot is to be rolled out nationally. Discussions are underway with

the Office of the Public Guardian as to whether they would be prepared to set up a panel of

mediators.

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6 The mediators on the pilot panel must be able to evidence the following criteria:

A qualification from a reputable mediation training organisation.

5 years of mental capacity or Court of protection experience.

Knowledge of safeguarding (which can be evidenced by taking an on-line training

module).

Be prepared to work for the rates provided for by the Pilot Scheme.

Be available to work during the life of the pilot.

7 For the pilot, it is proposed that:

The working group disseminate the criteria for mediators through the 39 Essex

chambers monthly COP report, and informally through the market.

The working group or ideally, an organisation such as Trust Mediation, screen

applications and draw up a panel of up to [15] mediators (the number is dependent on

the number of cases on the pilot).

8 The panel itself will be administered by an organisation such as the OPG if they are willing to

do this and it fits in with their business plan, (or Trust Mediation (who administer the NHS

mediation panel). The administrator will join the cases to the mediators as they come on to the

scheme.

C Purpose of the mediation

9 Once a case has been issued, the Court becomes the decision maker pursuant to the MCA.

10 The purpose of the mediation is not to usurp the Court’s function, but to explore whether the

parties can come to an agreement as to where P’s best interests lie. The agreed terms would

form the basis of a consent order to be submitted to the Court for judicial consideration

together with the full mediation agreement at an ‘approval hearing’.

11 A party who, having agreed terms in the mediation, then refuses to agree to a consent order in

those terms, would (absent some good reason for the change of position) be prevented from

making oral submissions to resile from the agreement reached at the mediation, at the

approval hearing.

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D Types of cases to be on the pilot

12 This is a pilot scheme which is to be implemented by way of a practice direction in the Court

of Protection. Practice Directions can by their nature, only regulate the conduct of issued

claims.

13 There is however nothing stopping parties engaging in mediation via the scheme and

following the guidance in the draft practice direction pre-issue. This will involve payment of a

fee to the scheme administrator to cover the administration of their mediation as this will not

be funded under the pilot scheme. Additionally, the OPG are about to launch a further

mediation pilot to deal with attorney and Deputy disputes before issue. This pilot and the

OPG's pilot will run alongside each other.

14 If appropriate, the working group will consider at a later date mediation in non-issued cases.

15 The following categories of cases are suitable for the scheme:

Health and welfare disputes, including disputes about medical treatment.

Serious Medical Treatment disputes.

Property and Financial Affairs disputes.

Mixed health and welfare, and property and affairs disputes.

16 The following cases are unsuitable for the scheme:

a. DOLS Re X type cases which would otherwise be using the stream lined process.

These are by definition agreed, and require a Court order.

b. DOLS challenges where P is the only one challenging the deprivation of liberty.

c. Cases where there may be an overlap with the Inherent Jurisdiction (including

wardship cases), and where there are issues around forced Marriage. These cases

require High Court orders.

d. Disputes about whether P has the capacity to make the decision in question.

e. Disputes about what the law is.

f. Disputes in which serious allegations of abuse (save for allegations of financial

abuse) have been made against one party or where there is a dispute about whether

abuse (save for allegations of financial abuse) has taken place.

g. Disputes in which there are allegations of substance abuse with respect to one of the

parties rendering them unsuitable to take part in a voluntary process.

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h. Disputes in which a party other than P lacks capacity to litigate, unless that

incapacitated party has a litigation friend.

17 We have considered whether section 21A DOLS challenges should be excluded on the basis

that resolving any DOLS challenge in a mediation is not article 5 compliant. As any

agreement will have to come before the Court for approval in any event, we have concluded

that that hearing is sufficient to comply with article 5.

18 We recognise that in some urgent cases it may be very difficult to make the practical

arrangements to conduct a mediation. Nevertheless, mediation can work very well in such

cases and so if arrangements can be made as a matter of urgency, such cases should be able to

proceed on to the pilot scheme.

19 We have considered the extent to which the scheme should be voluntary and the extent to

which the parties should be encouraged to mediate by the Court. We make the following

proposal:

At the paper gate keeping stage, the Judge must consider whether, on the information in

the application, the case is one that would not be suitable for mediation (applying the

criteria at paragraph 16 above).

If the case is not suitable, this should be recorded with the reasons, in the preamble to

the first directions order.

If the case appears suitable, the Court will make a case management order that the

parties are to seriously consider whether this case should enter the mediation pilot

scheme. The Court should further direct that the issue of permission to bring the

proceedings will be determined after the parties have considered the issue of mediation.

The parties should be reminded that the Court can make costs orders if their conduct is

deemed to be unreasonable

If the parties agree to the case entering the pilot scheme, they must notify the scheme

administrator (details to be provided by the Court on the first directions order).

If the parties do not consider the case is suitable for the scheme, they must file reasons

for this with the Court. The court will consider the reasons and may make a finding that

a refusal to mediate amounts to unreasonable conduct and make such costs orders as it

thinks fit

20 The alternative proposal is that the parties are simply notified by the Court of the existence of

the pilot scheme and it is left entirely up to them as to whether they go down that route. We

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have rejected this proposal for the pilot scheme in order to ensure that there is sufficient take

up of the scheme to make the pilot meaningful.

E Size of pilot

21 Given that very different challenges arise in respect of the different types of cases, we

consider that there needs to be a reasonable cohort of cases for each of the four categories of

case.

22 In order to evaluate whether mediation is effective, a reasonable cohort of cases in each

category will need to be evaluated. Further work as to what this means is required by

reference to the number of cases that are issued in the South West in each category. In

addition, the cost of the evaluation needs to be considered when determining the size of the

pilot.

23 As well as those cases that enter the scheme, consideration will need to be given as to whether

control cases, which are not mediated, will need to be identified.

24 The administrator will need to notify a contact at the working group once the number of cases

for each category has been reached. This information will then be passed on to the

gatekeeping South West Judiciary.

F How will cases come on to the pilot

25 For those issued cases where the parties have been directed by the Court to seriously consider

mediation, they can simply inform the scheme administrator that they are coming onto the

scheme.

26 For those unissued cases (not part of the pilot) who wish to avail themselves of the scheme

(albeit outside the parameters of the pilot), they will need to contact the scheme administrator

to make arrangements and pay the appropriate fee for their case to be dealt with via

mediation.

G How will the mediations be funded

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27 As the mediation is a step in the litigation, the usual costs rules will apply to the funding of

the mediation, unless and until the Court makes a different order. This means that in the P&A

cases, the starting position is that the cost of the mediation will be met from P’s funds, and in

H&W cases, each party will be expected to pay a share. The Court can of course make a

different order on application.

H The mediation itself:

Should there be any ground rules?

28 The fact that the parties can run the mediation in any way they choose and can agree matters

beyond the legal/factual issues in the litigation is one of the positive aspects of mediation, as

it is often these issues that lie behind the breakdown in the relationship between the parties in

the first place.

29 However, it is suggested that there should be some ground rules that all parties to the

mediation must abide by:

That pre-mediation meetings between the mediator and each party are essential. They

can take place either by phone or face to face, at the mediator’s discretion.

The mediation must be in person and cannot be conducted by phone.

The parties must agree the venue for the mediation and pay for it in equal shares. In

default of agreement, the venue must be a neutral one, independent of the parties.

Parties joined by the Court have a right to attend the mediation with support (which

includes legal representatives). The parties can agree with the mediator, that invitations

to non parties can be issued.

Parties should use their best endeavours to keep the information to be provided to the

mediator to a minimum and should not in any event exceed 350 pages. This information

should include an agreed list of areas of agreement and dispute, to help focus the issues

in the mediation in addition to capacity evidence about the issue in dispute.

Each party to the mediation must come with authority to settle the dispute (subject to the

final approval of the Court). This needs to be checked with each party prior to the start

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of the mediation. It is accepted that where approval needs to be sought for funding for

packages of care, any agreement will be subject to the usual procedures. This must be

made clear to the parties at the start of the mediation.

Any agreement reached in the mediation will form the basis of a consent order to be

submitted to the Court for approval. A party who, having agreed terms in the mediation,

then refuses to agree to a consent order in those terms, would (absent some good reason

for the change of position) be prevented from making oral submissions to resile from the

agreement reached at the mediation, at the approval hearing.

30 The mediator has the following obligations:

The mediator can take the case off the scheme at any time if there has been a mistake

made in screening the case as suitable for the scheme as it does not fit the criteria.

The mediator has a right to recuse him/herself if on meeting the parties/investigating the

issues, the mediator considers he/she is not a suitable mediator.

The mediator must ensure that any agreement the parties come to, where it amounts to a

BI decision on the part of the P is one that is capable of being approved by the Court i.e.

that it is lawful. Thus:

The mediator must be sure that the decision is one in which P does not have

capacity to make the decision him/herself. The information available to the

mediator must then include some evidence that P lacks the capacity to make

decisions on the main matters in issue. If there is a dispute about this, the case is not

suitable for the scheme.

P’s wishes and feelings on the matters in issue need to be available to the parties

when making their decision on best interests. This should therefore have been

obtained prior to the mediation (preferably by an independent person such as an

advocate or a lit friend, an appropriate professional with expertise in P’s disability

or an independent friend/relative). Alternatively of course P could attend the

mediation if accompanied by a litigation friend, rule 3A representative, a suitably

independent professionals such as an IMCA or an independent friend/family

member.

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All mediators must report any suspected safeguarding/abuse issues they become aware

of through the mediation to the Local Safeguarding Board. The parties must be informed

of the Mediators duty in this regard.

Co-mediation

31 Co-mediation is permitted under the scheme, as long as it does not lead to an increase in the

costs. In other words, if a mediator is approached, and for the same cost, seeks the parties

agreement for a co-mediator to be involved, this is acceptable.

I PARTICIPATION OF P

32 If P has capacity to litigate the COP proceedings, P will also have capacity to engage in the

mediation. P can then agree to participate in the mediation in the same way the other parties

can.

33 If P lacks capacity to litigate the COP dispute (as almost all Ps do), then capacity to engage in

the mediation is just one facet of this. P will therefore be considered to lack the capacity to

make the decision as to whether to engage in the mediation.

34 Where P has either a litigation friend or rule 3A representative, they are the decision makers

within the meaning of the MCA, as to the extent to which P should participate in the

mediation.

As set out above, as a minimum, in all mediations, Ps wishes and feelings as to the

issues in dispute must be available to the parties to the mediation.

The Litigation Friend/Rule 3A representative will be expected to discuss with P, in so

far as that is appropriate, how P would like to participate in the mediation. This could

range from giving views directly to the litigation friend/rule 3A representative about the

mediation, or attending the mediation. If there is a concern that attending the mediation

is not in P’s best interests, this is a decision for the litigation friend/rule 3A

representative to make in consultation with the other parties.

35 Where P does not have a litigation friend or rule 3A representative, the parties must agree

between them, using the menu of options set out in paragraph 37, the best way for P to

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participate in the mediation. If the parties are unable to come to an agreement in respect of

this issue, the case must come out of the scheme.

36 Equally, if there is no way of securing Ps participation in the mediation, the case must come

out of the scheme.

37 The menu of options is as follows:

Engage an advocate (either privately or via existing publicly funded schemes) to speak

to P about the mediation and obtain P’s views about the mediation. In the event that P

wants to attend the mediation and all parties agree this is in Ps best interests to do so,

engage the advocate to attend the mediation with P and support P through the process.

If P does not wish to attend or it is not in Ps best interests to attend, the parties can agree

that the advocate can attend to put Ps wishes and feelings forward.

Consider whether there is a professional who is sufficiently independent of the parties,

who has experience of P’s disability, who can elicit P’s wishes and feelings. Obtain a

report (either via section 49 or by a private instruction), from that professional regarding

the same. In the event that P wants to attend the mediation and all parties agree this is in

Ps best interests to do so, agree that the advocate is to attend the mediation with P and

support P through the process. If P does not wish to attend or it is not in Ps best interests

to attend, the parties can agree that the professional can attend to put Ps wishes and

feelings forward.

Consider whether there is a friend or relative who is sufficiently independent of the

parties who can elicit Ps wishes and feelings about the mediation. In the event that P

wants to attend the mediation and all parties agree this is in Ps best interests to do so,

agree that the friend/relative is to attend the mediation with or without P and support P

through the process. If P does not wish to attend or it is not in Ps best interests to attend,

the parties can agree that the friend/relative can attend to put Ps wishes and feelings

forward.

Mediator meeting P

38 P should only meet the mediator outside the mediation, if P is to come to the mediation. The

meeting is simply a preparatory step so that P has met the mediator before the actual

mediation. It is not to obtain wishes and feelings. The mediator is not a decision maker, so

does not need to meet P outside the mediation process in order to secure P’s participation in

the process.

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J MEDIATION AGREEMENTS

39 Parties will be required to sign an agreement to mediate. This will be arranged via the scheme

administrator. This will be a standard agreement. It will include:

The Ground rules (see above)

That what happens in the mediation is confidential, save that any agreement will form

the basis of a consent order to be submitted to the Court (and the legal effect of that

agreement).

Terms as to what is expected of the parties vis a vis the evaluator.

Terms as to confidentiality regarding the evaluator (i.e. that they agree to the evaluator

seeing information about the mediation, and can publish their research, suitably

anonymised).

Make explicit that information that is disclosed which suggests that a criminal act has

been committed or that P has been abused or exploited will be passed on to the relevant

authorities.

Include a schedule for parties and attendees.

40 Any agreement made at the mediation (which will form the basis of a consent order to be

submitted to the Court) will include any agreement the parties have come to regarding

informing third parties as to the outcome of the mediation.

K THE SCHEME ADMINSTRATOR

41 Funding for this is required. The administrator is likely to want a fixed payment for each case

that comes onto the scheme. We do not yet know the size of the pilot, so cannot yet cost this.

However, we anticipate that it will be something in the region of £300 per mediation.

42 There are two ways of funding this:

The most straightforward way of funding this is for a percentage of the fees payable by

each party to the mediator is diverted to pay for the administrator. Further discussions

with the LAA are required to ascertain whether within their funding structure, this

would be permitted.

The alternative is to seek funding from external agencies. Discussions are taking place

with a number of agencies.

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43 We suggest the following are matters that the administrator should be responsible for:

Obtaining the consent of the parties to the mediation and to taking part in the pilot i.e.

the evaluation process.

Ensuring the parties understand that if agreement is reached, that agreement will form

the basis of a consent order to be submitted to the Court for approval, and that if they

change their mind in the interim, absent a good reason, they will be prevented from

arguing against the terms of the consent order before the Court.

Arranging the appointment of the mediator with the parties. It is suggested that the

parties can chose out of the pool.

Arranging a time for the mediation with the parties.

Ensuring the parties have secured a venue for the mediation.

Providing the parties with the information about the scheme and with the pro forma pre-

mediation agreement.

Providing the parties and the mediator with each other’s contact details.

Obtaining payment from the parties for the mediation.

Liaising with the person evaluating the mediation.

Providing the evaluator and the parties with each other’s details.

44 We suggest that the mediator :

Ensures that he/she has the relevant capacity evidence.

Manages the issue of the participation of P with the parties (although ultimately this is a

matter for the parties to agree and not for the mediator to decide).

Leads the discussion with the parties as to who should attend the mediation (although

ultimately this is a matter for the parties to agree and not for the mediator to decide).

L MONITORING AND EVALUATION

45 Exploration of this process is still underway. What is clear is that:

The person/body carrying out this task must be independent from the working group.

The evaluator needs to be involved in the beginning to ensure that the way the pilot is

set up allows the research/evaluation question to be answered.

46 There are at present two broad proposals:

An academic such as Dr Sue Prince at Exeter University or Timea Tallodi at University

of Essex become the Principle Investigator (PI). Their university makes a funding

application to a third party such as the Nuffield Foundation to fund the research. The

contract for funding is held by that university. The PI has access (permitted by the MOJ)

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to the COP documents and mediation documents, is able to sit in on mediations, and can

speak to the parties and mediators both before and after the mediations. This will be a

substantial piece of work. Funding is unlikely to be in place for a year unless a

conglomerate of bodies agree to share the funding.

A less comprehensive review based on (a) a survey questionnaire for the parties before

the mediation with a combination of tick box questions and narrative questions, (b)

observation of some mediations (c) follow up interviews after the mediation, and (d)

follow up some months later. Jamie Tabitha Lindsey, a PhD student has expressed an

interest. Funding for this would depend on the size of the pilot and is to be explored.

47 The outcome measures are to be set by the research team. At present we are considering

something along the lines as set out in para 4 above i.e. whether mediation:

saves Judicial time by resolving issues which would otherwise have to be resolved by

the Court at a final hearing, thereby easing the pressure on listing and on Court budgets;

saves the parties money by reducing or removing the need to incur the legal costs of

preparing for contested hearings, instead incurring the cost of preparing for a mediation;

represents a saving for public bodies by diverting the time of the professionals involved

from front line services to the mediation rather than litigation;

either improves or does not further damage, the working relationships between the

parties when compared to litigation, thus making future disputes less likely.

48 Views from the Judiciary and the market will be obtained as to:

The research questions to be asked.

Whether intensive evaluation may be a bar to parties engaging in mediation.

Whether a lighter touch evaluation will have less credibility.

M COSTS

49 Further work on this issue is required.

N PROMOTION OF AND CONSLUTATION OF SCHEME

50 Informal consultation and gathering of views will take place over the summer of 2017 with a

view to finalising the terms of the scheme in September 2017 (together with a document

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summarising the views expressed by those consulted) and drafting a Draft PD during October

2017 for submission to the Rules committee.

51 Information as to the scheme will need to be provided by the working group to explain the

scheme, if the PD is implemented.

O TIMESCALES

52 Timetable:

July – beginning of September we can circulate the document and seek views. Views to

be fed back to KS

Beginning of September - KS drafts responses to consultation document.

Meeting mid September to make final decisions as to what is to be the pilot.

Draft the pilot practice direction and other documents over October 2017.

Send to rules committee with a view to a start date in January 2018 latest

P DOCUMENTATION

53 We suggest that we will require:

A pilot practice direction

Written information about the pilot for potential participants.

A pro forma agreement to mediate

A pro forma mediation agreement which will include terms as to confidentiality.

Pre-mediation evaluative forms

Feedback forms both before and after the mediation.

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ANNEXE A

Members of the working group

Sarah Barclay - Medical Mediation Foundation

Victoria Butler-Cole - 39 Essex Chambers

Dr Chris Danbury - Medical Mediation Foundation

Baroness Ilora Finlay of Llandaff

Andrew Hannam - Enable Law/ Foot Anstey LLP

Lesley Hutchinson –Bath and North East Somerset Council

Claire Leandro –Cornwall Council

Simon Lindsay - Bevan Brittan LLP

Mel Lock –Somerset County Council

Charlotte May - Wiltshire Council

Holly Mieville-Hawkins - Enable Law/ Foot Anstey LLP and Law Society

Katie Scott - 39 Essex Chambers

Georgina Rowley

Polly Sweeny - Irwin Mitchell LLP and Law Society

Hannah Taylor - Bevan Brittan LLP and Chair of South West CoPPA

Academics

Sue Prince - Exeter University

Dr Timae Tallodi - mediator and academic

Jaime Lindsay

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