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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