Case Study: Mediation of a Court of Protection 'best interests' dispute

Introduction:

The following case study is cited as an illustration of how the mediation process works in practice. In this instant Russell Caller was already the Court of Protection panel-appointed deputy for the individual whose best interests were under dispute. Russell used his mediation skills to resolve this family conflict in his capacity as the professional deputy, but the process used is the same as in a more typical mediation where Russell provides a mediation service as an outside Mediator.

Background:

This mediation involved resolving the conflict between various family members who were in dispute as to where an elderly man (Mr X) suffering from dementia should live. As stated above, Mr X’s affairs were already being handled by Russell Caller in his capacity as a Court of Protection panel-appointed professional deputy.

Mr X’s wife and children were in dispute both between themselves and with Ms Y, Mr X’s long-time female friend. Mr X’s wife and three of his four adult children wanted Mr X to reside in a local care home with no visitation rights being allowed to Ms Y. Ms Y wanted Mr X to come and live with her, where she claimed she had the capacity to take care of him. Mr X had stayed with Ms Y on previous occasions since the onset of his dementia. The other child supported Ms Y’s position.

Mediation process:

Due to the nature of the dispute and the emotional energy surrounding this conflict, Russell decided to meet with the disputing parties separately rather than sit everyone around a table together. All parties involved in the dispute ( Mr X’s wife, Ms Y and Mr X’s four adult children) were invited to meet with Russell separately with the stated intention of coming to resolution over this dispute through mediation. In addition, Russell also met with the manager of the care home (where Mr X was currently residing for a period of respite care) and a long-time friend of Mr X. Finally Russell consulted with Mr X himself.

During Russell’s discussions with each interested party he utilised the following approach:

1. He listened to each parties point of view
2. He then acknowledged their point of view
3. Finally he established what each party was willing to compromise on

Outcome:

As a result of this process the parties were able to come to a compromise position:

1. Mr X would continue to reside at the care home where he had settled in well;
2. Family and friends, which included Ms Y would have unrestricted visitation access;
3. All members of Mr X’s family and friends, including Ms Y, would be allowed to take Mr X for short stays away from the care home subject to agreement of the medical staff at the care home, and giving one week’s notice to the staff at the care home and the professional deputy.

Although the result of a mediation process is usually documented in a formal Mediation Agreement which all interested parties sign, in this situation, Russell, as Mr X’s professional deputy, had authority to make the final decision on how this conflict would be resolved and therefore the disputing parties were not, in this case, required to sign a mediation agreement. However it is clear that tacit approval has been given by all the disputing parties in this matter as Mr X continues to reside at the care home as agreed and all parties have since been able to accept this new state of affairs and move on.

For a free and confidential discussion please contact Russell Caller on rc@gillhams.com or 020 8965 4266.