About Court of Protection mediation.
The Court of Protection is a specialist Court which protects the interests of people who have lost their mental capacity and are therefore unable to manage their own affairs. The Court has the power to appoint a 'Deputy' to deal with property and financial affairs and in some instances the health and personal welfare of the person who is no longer able to make their own decisions. When a dispute arises in relation to a vulnerable person's affairs, the Court of Protection has the jurisdiction to get involved and resolve those disputes.
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.
When parties decide to engage in mediation the first step is to find a suitable mediator, one who specialises in Court of Protection cases. The mediator will ask for some information about the case to decide whether the dispute is likely to be capable of resolution by mediation. When the mediator accepts the case s/he will usually ask to meet with the parties separately to understand what their point of view is and why they have reached the position they have. When that has been done the mediator will arrange the mediation and through discussion and negotiation will try to assist the parties to reach an agreement.
Information given in the mediation is confidential and cannot be disclosed outside of the mediation without the express consent of the parties to it. The discussion cannot be used later in the court process although the nature of a mediated decision may be communicated to the court. This enables parties to speak freely, to be more transparent which aids dispute resolution. The mediator manages the process, engages with the parties, facilitates the necessary sessions, and brings the matter, wherever possible, to a conclusion. The mediator may also draw up an agreement at the end of the mediation if one has been reached.
Mediation in the Court of Protection is different from almost any other form of mediation because the parties are mediating about a third party, who will in most cases, not have capacity to enter into a mediation agreement. This means that the mediator must have expertise in the field of mental capacity to ensure that the agreement the parties reach is likely to be approved by the Court as being in the best interests of the party concerned.
