Are you a professional deputy, an MCA lead, an adult safeguarding manager or a DoLS administrator; a social worker or a clinician; or a friend or relative?
Are you dealing with or involved in a dispute about what is in the 'best interests' of a person lacking the mental capacity to decide for themselves?
If you are then you know better than anyone else how challenging it is to bring resolution and garner lasting agreement between parties in conflict. You may have already received a second opinion or held a formal or informal case conference.You might have tried to involve an Independent Mental Capacity Advocate (IMCA) only to find that the IMCA Service is not designed to resolve these kinds of disputes. Despite countless meetings, lots of time and energy invested and your best efforts to resolve things, the dispute is still dragging on and no-one quite knows what to do next. Does this sound familiar? Where else can you turn for assistance?
As a last resort, many of these disputes end up at the Court of Protection – resulting in costly and often damaging contentious proceedings - but there is a viable and more cost-effective solution – Mediation.
Mediation Services for Court of Protection Disputes
Russell Caller talks about the benefits of Mediation.
I'm Russell Caller, Managing Partner of Gillhams. I'm a Solicitor and I'm also a Court of Protection Professional Deputy and I've held that position for 13 years. I'm also an accredited mediator.
As Court of Protection experts we are very comfortable here at Gillhams dealing with the unusual and emotional issues that surround elderly people living with dementia. As professional deputies that handle about 70 matters at any one time, we're in daily contact with local authorities, safeguarding teams, social workers, health authorities, families, hospitals and G.P.'s. We regularly witness the difficulties and disputes that arise when a bunch of stakeholders, including family members with strong emotional ties but often with varying interests and approaches, try and manage the best interests of an incapacitated person.
So as you can probably imagine, this is an area absolutely rife with potential disputes. Such as, where should the person who has lost capacity live? Should they be living at home with a family member? Should they be living at the family home with a carer? Or should they go into a residential care home? Also, what medical care should they be receiving? What are we going to do with the house of the incapacitated person if that person has moved into residential care? This is why we offer a mediation service to help resolve these types of conflicts that have become really entrenched; as an alternative to going to court.
So how do I approach the mediation process? First of all, I need to set goals. I need to find out from all the parties what they want to achieve. I need to find a commonality between what all the parties want to achieve. That's the way we're going to resolve the dispute. But more important than anything is that I listen. I need to listen to all the parties. I need to know what's important for each of the parties. What drives them. What are their desires, what are their wants and their needs. I need to set and manage their expectations and sometimes I need to push those boundaries out. And I also need to make sure that those expectations and needs are realistic. So I will do what I call reality testing; push people to make sure that their expectations are achievable. No point having expectations of parties that can never be achieved.
So, what actually physically happens during the mediation? Well, the first thing I do is I bring everybody together into the room and everybody sits around and has a moment to explain where they're coming from, where they see their strengths of their position and what they want to achieve. So everybody around the table starts to understand what the expectations are of the others. For the rest of the day I'm really just carrying out shuttle diplomacy, moving from one room to another where the different parties are set up, listening, discussing and trying to pry open the issues so that eventually during that mediation day, an agreement can be reached and we can all decide a way forward.
So why would you use mediation? Well, in my experience 90% of disputes result in resolution. That's a very high percentage. And for that reason only, it's probably worth using mediation. The cost; it is much cheaper to go to mediation than it is to end up in court. Going to court involves witnesses, witness statements, solicitors and barristers - it's an expensive business.
But perhaps the most important reason for going to mediation is to preserve the relationships between family members, local authorities and professional deputies. That's not just in relation to this dispute but also in going forward. Those bodies will be able to work better with the people around the table because they have got to know them and they know what drives them. Ultimately, we have to reach an agreement. We manage to achieve that agreement because everybody around the table is part of the decision-making process. It is not a court judgment that people have to follow. People own that process, and it is because they own that process that, I believe, any agreement reached will survive going forward. The mediation process allows them to do that whereas a court judgment probably wouldn't. So we believe that it is in the best interest of everyone concerned to use mediation as a tool to resolve disputes.
Benefits of Mediation over Court proceedings
Here at Gillhams we believe that whenever there is a significant disagreement about what is in the 'best interests' of a person who lacks the capacity to decide for themselves mediation should be the first port of call. And that’s why we offer a specialised 'best interests' dispute mediation service for Court of Protection matters. But you don’t have to just take our word on this – the Mental Capacity Act (MCA 2005) Code of Practice Ch 15 itself recommends mediation as the appropriate recourse before and hopefully instead of Court proceedings – and here’s why:
Potential cost savings: the costs involved in going to mediation are significantly less than seeking to resolve a dispute through Court proceedings.
Relationship preservation: is much more likely if the dispute is resolved via mediation, where as post court case relationships can often be difficult and therefore continue to be expensive and time-consuming to navigate.
Agreements that last: people who come to an agreement through mediation are more likely to keep to it, because they have taken part in the decision-making process.
Demonstrates responsible action: for public sector service providers tasked with resolving these 'best interests' disputes, applying for mediation even if it does not fully resolve the dispute demonstrates your commitment to resolve the matter less formally and with considerably less expense.
Applying the appropriate solution: many 'best interests' disputes with family members are referred in error (Ch 10.79 of MCA Code) to the IMCA service when they would be much better served referring these disputes directly to skilled and experienced mediators in a structured mediation process.
Confidentiality: People are free to speak in mediation in the knowledge that it cannot later be used in Court by either party. In addition anything that is discussed between one party and the mediator in private meetings with the mediator is always held in strictest confidence, and is not shared with other parties to the mediation unless/until consent is given by that party.
'Best Interests' Dispute Mediation Services at Gillhams
The team is headed by Managing Partner, Russell Caller, who is an accredited and experienced mediator. He is well-placed to help resolve 'best interests' disputes as he has been a panel-appointed Court of Protection deputy - looking after the property and affairs of mentally incapacitated people - since 2000. Russell is also one of a few to be authorised by the Court to make decisions about their health and welfare too.
All of this marks Russell out as a skilful mediator who is in demand.
View Russell’s mediation experience
What we do
Our Mediation Agreement explains how the arrangement works. While each dispute is unique, the form of the mediation will take the following course:
- We make contact with each party separately to find out more about the dispute and what they hope to achieve from mediation.
- We arrange joint mediation sessions.
- We meet the parties together and facilitate discussion, giving everyone a chance to air their views.
- We help focus the discussion and bring about agreement during one session, or in a series of sessions.
- If agreement is reached we assist in the drafting of a formal written agreement which when signed will become legally enforceable between the parties.
What kind of 'best interests' disputes can be mediated?
Any disputes relating to the care of a mentally incapacitated person. That can mean their health and welfare, their finances and their property. Mediation really comes into its own where the parties are not communicating well with one another.
Who can be involved in the mediation process?
Anyone who has either legal responsibility or feels a sense of emotional responsibility towards the mentally incapacitated person.
How much will mediation cost?
The costs of conducting a mediation (described in the Mediation Agreement) will vary depending on the following factors:
- How many parties want to be involved in the mediation;
- Whether the mediation can be resolved in one day or will need additional days to settle the dispute;
- Whether the mediation is to be carried out within or outside the M25; and
- Room hire costs for a suitable venue to host the mediation.
In general, where the Mediator (Russell Caller) is working with two parties to resolve their dispute, the costs are £2,500*+VAT; with three or four parties the costs are £3,500*+VAT. If there are five or more parties involved, a quote will be provided after additional background information on the dispute and the parties is supplied.
Rates quoted are inclusive of all preparation, including any contact (in person/phone/email/skype) with the parties in advance of the mediation and the costs of an assistant to support the Mediator during the mediation process.
The rates quoted above are based on a one day mediation process – which usually starts at 9am and may run well into the evening. Where the mediation goes beyond one day (very rarely) an additional fee will be charged.
Where the mediation takes place outside of the M25 (ring-road around London), travel expenses for the Mediator and an assistant plus the costs for overnight accommodation are also payable.
In addition to the above-quoted rates a suitable venue to host the mediation will need to be arranged. For the purposes of conducting an effective mediation process 4 or 5 separate meeting rooms are usually required. In effect each party will need a room of their own. A room with the facilities to seat all the parties and their advisors must also be arranged, together with a separate room for the Mediator and his assistant. For mediations that can be hosted near our office in North West London (Park Royal), we are more than happy to arrange rooms in a hotel close by – just off the A40 and close to North Acton tube station. The cost for 4/5 rooms for the day is in the region of £1000+VAT.
Although the Mediation Agreement allows for all parties to share the costs equally, the Deputy may in many circumstances agree that it is in the best interests of the incapacitated person (the client) that the cost of the mediation is paid from the client's estate. In certain cases where appropriate, the Deputy may initially agree to fund the mediation, but the settlement reached during the mediation reverses this agreement.
For precise costs for your mediation, please email Russell Caller with a brief summary of the basis of your dispute and the parties involved.
For a free and confidential discussion please contact Russell Caller on firstname.lastname@example.org or 020 8965 4266 or complete the form below.