A Roundtable on the Role of Mediation in the Court of Protection

Dr Jaime Lindsey, Lecturer in Law, University of Essex

On 18 June 2020, I hosted a roundtable on the role of mediation in Court of Protection (CoP) proceedings. Originally, this meeting was meant to be held in person, but due to events I decided to move the roundtable online, rather than delay. The aim was to get a range of stakeholders with expertise in mental capacity law, the CoP and/or mediation together to discuss the key issues arising where mediation is used in the context of CoP proceedings. The roundtable included discussion of the role of mediation in improving P’s participation (P being the subject of the proceedings).

Evidence suggests that P’s participation in CoP proceedings is limited and so part of the aim of my current research is to consider whether i) mediation provides more opportunities for participation and, if so, why, and ii) whether or not this improvement in participation is reflected in practice. The roundtable also included discussion of wider issues, including mediation’s various advantages and disadvantages, and discussions about the use of virtual mediations during the pandemic.

Despite the limitations of holding a roundtable by Microsoft Teams, the event was a success, bringing together a range of perspectives including lawyers, mediators, academics, policy makers, members of the judiciary and others. The session began with three short presentations to identify the core issues to frame the roundtable discussion. These presentations covered: an overview of the current evidence on mediation in the CoP; vulnerability and the values of participation in mediation; and, reflections on the use of virtual mediations during the pandemic. After a short break, we then moved on to the roundtable, whereby participants engaged with a multitude of topics ranging from the extent to which P participates in mediations, to which issues are most appropriate for mediation and who should fund mediations.

Clear positive reflections on the possibility of CoP mediation included: mediation’s potential to improve relationships between parties; that it can be a better form of resolution; and, that its processes are more flexible and informal. Potential challenges of CoP mediation included: dealing with power imbalances and participant vulnerability; safeguarding concerns; the potential for mediation to create delay in resolution; and, concerns about substantive justice, for example whether the outcome of mediated agreements is always in P’s best interests.

The roundtable also included some discussion of the mediation scheme, set up by a working group of experts, which is currently underway and seeking to gather evidence on the use of mediation in CoP proceedings. I will be carrying out the independent evaluation of that scheme and the roundtable discussion was invaluable for identifying some of the key issues that will need to be addressed in that report. Themes and issues identified at the roundtable will also help to shape the future direction of my research in this area more generally and I hope will facilitate further discussion between academia, policy and practice on this important issue.

I am grateful to all who took part, as well as the Socio-Legal Studies Association for funding the event through a research grant. The roundtable was held under the Chatham House Rule, which means that individual participants will not be identified, implicitly or explicitly, publicly. A full report of the roundtable will be available soon. Please get in contact with me if you would like a copy of that report (j.t.lindsey@essex.ac.uk).

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