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.
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 cost of court applications/legal representation can result in a bill of tens of thousands of pounds as compared with perhaps £2-3k for mediation.
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?
Email Russell now, with a brief summary of the basis of your dispute, for an estimate of costs.
For a free and confidential discussion please contact Russell Caller on firstname.lastname@example.org or 020 8965 4266.
Gillhams Solicitors LLP ‘excels in this area (Court of Protection), and has the very highest standards of ethical and legal knowledge' The Legal 500 – United Kingdom (2014 edition)