Mediation – The Human Element
Mediation – The Human Element
BY HELEN CURTIS, GARDEN COURT MEDIATION
Read this interesting article written by Helen Curtis, examining the role of mediation in cases involving individuals lacking mental capacity. The research highlights the substantial benefits of mediation, including improved relationships, timely resolutions, and noteworthy participant satisfaction. Helen Curtis is looking forward to Dr. Lindsey’s forthcoming research on medical treatment disputes, as it promises to provide valuable insights into the transformative potential of mediation as a form of therapeutic justice.
Mediation exists as a process through which the parties in dispute can engage in joint problem solving and decision-making with the aim of facilitating a resolution. In cases where the dispute concerns ‘P’, a person who lacks mental capacity to make a specific decision, a number of considerations arise. These include the question of whether lacking capacity to make a specific decision also means lacking capacity to participate in mediation. Certainly there is evidence that mediation can lead to better working relationships between individuals and statutory bodies. In YH v Kent County Council and others [2021] EWCOP 43, Mr Justice Keehan observed that ‘YH and the local authority engaged in mediation which resulted in a substantial degree of agreement about the future care plan for CB [‘P’]’. However, it is noted that CB was neither present nor represented at the mediation.
In the report Evaluation of Mediation in the Court of Protection published in September 2022 Dr Jaime Lindsey and Gillian Loomes-Quinn examined the factors at play in mediations where P lacked capacity to make decisions about their property and affairs and other aspects of their life. The authors summarise their findings as follows:
• 33% of respondents said it was cost effective to take their case to mediation
• over 60% stated that their dispute was resolved sooner via mediation than if the case had continued to court
• full or partial agreement was reached in all the mediations
• 75% indicated some degree of improvement in working relationships
• 33% said they would be prepared to use mediation again for Court of Protection cases
Six mediations were conducted during the evaluation. P did not attend any, although three respondents indicated that P participated in less direct ways – eg by being represented at the mediation or via a meeting with the mediator. The most common reason given for P’s lack of participation was lack of capacity, but as Lindsey and Loomes-Quinn note, this ignores the possibility of P to lack capacity in respect of the subject matter of the case but to retain capacity to engage in mediation.
