The Contested Wills, Trusts and Estates team discusses the option for parties to attempt mediation in contested Court of Protection matters.
Despite mediation pilot schemes, the Office of the Public Guardian and the court’s general encouragement for parties to use alternative dispute resolution, and rule 1.3(3)(h) of the Court of Protection Rules 2017, only around 5% of Court of Protection disputes (health and welfare and property and affairs) involve mediation. This is a lower percentage than other litigious matters such as contested probate, family law and wider, more general litigation such as contract or monetary disputes.
As with any mediation, there must be a chance of settlement and it is easy to see why there is such a low figure. If there is a dispute between family members concerning the protected party’s (“P’s”) care placement, for instance, a compromise might be less likely given the limited middle ground: either P remains at home with a package of care or moves into a care home.
A party to proceedings that may have financially abused P might also derail mediation in trying to justify their actions, making it more appropriate for the court to determine a particular case. There is also often an urgency to Court of Protection proceedings, with some issues determined in a short space of time at one hearing; mediation merely an afterthought if considered at all.
Like any other decision, the decision to mediate also needs to be in P’s best interests under section 4 Mental Capacity Act 2005 and a litigation friend appointed to represent P in proceedings might take the view that it is not, given the costs involved when compared to the value of the estate. For example, it might not be commercial for mediation to be attempted between the disputing parties.
The general rule in Court of Protection proceedings relating to P’s property and financial affairs (discussed in more detail below) is that those costs are borne by P i.e., out of their assets. Therefore, mediation might not be in their commercial best interests, and it might simply be more cost-effective for the matter to be determined at court.
The purpose of mediating a dispute in the Court of Protection is to explore whether the parties can agree what is in P’s best interests. This is different from the usual best interests meeting whereby there is no independent mediator appointed. It can also be a forum more suitable for P, considering that all steps should be taken to ensure P’s participation.
Mediation provides an opportunity for the parties to have their say, often placating the urge for a person to ‘have their day in court’. It can also instil the realisation of the implications and costs of disputed proceedings and/or an improved relationship of trust and confidence between, say, two siblings who previously disagreed on the best person suited to manage P’s property and affairs.
If agreement can be reached, and a settlement agreement sent to the court for approval, this can negate contested proceedings and the hearings, time and costs associated with those (should the court agree to the terms of any settlement).