Elder and Guardianship Mediation: a review of the Canadian EGM Report and its relevance in the UK

Charlotte May

Senior Solicitor (Adult Care), Wiltshire Council and Mediator

[This article was first published in the Elder Law Journal (issue 4 Vol 2 2012) published by Jordans Publishing.   It is reproduced here with the kind permission of Jordans Publishing (in association with Solicitors for the Elderly).  It is not to be reproduced without prior permission of the publishers.]

The Elder and Guardianship Mediation Report (EGM) was published this year by the Canadian Center for Elder Law (CCEL) (British Columbia Law Institute, CCEL Report No 5, January 2012). The aim of this article is to provide a review of this invaluable research and reflect on its relevance to the UK.  The term ‘guardianship’ in Canada and the USA is different to guardianship under UK mental health legislation.  It is equivalent to the model of deputyship for finance and property, or health and welfare under the Mental Capacity Act 2005 (MCA 2005).  Since the EGM research is based on adult guardianship schemes, primarily in Canada and the USA, the term ‘guardianship’ will be used throughout this article, except where deputyship in England and Wales is discussed.

The report has seven distinct chapters each of which can be read as a self-contained paper so that readers can consider the document in the manner that best suits their needs.

         Chapter 1 – Background and Project Overview

         Chapter 2 – Introduction to Mediation, Elder Law and Elder Mediation

         Chapter 3 – Ethical Concerns, Values and Principles

         Chapter 4 – Focus on British Columbia (BC)

         Chapter 5 – Elder & Guardianship Mediation: Training & Standards

         Chapter 6 – Selected Court-connected Mediation Programmes

         Chapter 7 – Conclusions & Recommendations

A full copy of the report can be found at http://www.bcli.org/ccel/publications/elder-and-guardianship-mediation-report.

The CCEL research is extensive.  It reviews Canadian, US and international legal research, best practice and service delivery models drawn from pilot projects, court policies, elder care mediation training manuals, surveys of participants, experts and providers of mediation services. The report brings together various materials that should be taken into account in considering how to move forward with the development of elder and guardianship mediation. It compares the experience of voluntary and mandatory mediation programmes and discusses the practical and ethical issues. Its recommendations represent a high degree of consensus among the many experts and sources consulted in terms of best practice and what is needed to create a viable elder and guardianship mediation programme in a jurisdiction.

Recommendations

The most important general recommendations made in the report include the following:

• Elder and guardianship mediation both require, (in addition to basic mediation skills and experience) specialised skills-based and practical training, for example: in family dynamics, understanding the dynamics of aging and the aging process, dementia, elder law, elder abuse, capacity issues, strategies for assessing capacity to participate in mediation with support, knowledge of least restrictive alternatives, health care issues and community resources.
• Mediators must determine whether all the parties to the mediation have the capacity to participate meaningfully, either unassisted or with support.
• Impartiality does not mean the mediator must be passive. Mediators must ensure that all parties are able to be heard and communicate their wishes effectively. Mediators must be acutely aware of power imbalances, especially when elderly persons and those with diminishing cognitive powers are involved, and prevent mediation from becoming a tool for coercion or undue influence.
• Pre-mediation interviews are crucial to successful mediation.
• Co-mediation is generally an ideal model for the multi-party and multi-issue milieu of elder and guardianship mediation if resources permit.
• In mandatory mediation, it is attendance that should be treated as mandatory. Parties to mediation should not be required to agree or settle.

A court mediation programme

In order that a court-connected guardianship mediation programme succeeds, the report makes 18 recommendations (at pp 139–140) which include:

• an evaluated pilot project;
• a programme and policy established through a collaborative process involving key stakeholders and supported by legislation, the courts and government;
• clear policies for case selection and referral;
• full-time administrative support from specially trained staff to screen and refer cases;
• a register of mediators who have undergone specialist training and orientation to guardianship mediation involving practice learning by co-mediation with experienced mentors;
• good promotional and educational activities and support from establishing institutional and government partnerships, mediation organisations, the court, Law Society and Bar Council.

Guardianship mediation in Canada and USA

Amongst the many contributions to the research, it is clear that the work of the Center for Social Gerontology (TCSG) in the USA and the experience gained in the development of child protection mediation programmes (CPMP) in British Columbia (BC) have both been of particular significance to the development of guardianship mediation.

TCSG, a Michigan-based, not-for-profit organisation, is considered a pioneer of US guardianship law reform and guardianship mediation. Since the 1970s, TCSG has been committed to studying guardianship systems in the USA and promoting reform of American guardianship. Adult guardianship mediation was initiated in the USA by the TCSG in the early 1990s.

Throughout the 1990s pilot projects took place in Washtenaw, Ohio, Oklahoma and Wisconsin. The latter three were subject to evaluation in order to gather solid data on existing guardianship mediation programmes. The findings were published in 2001. A summary of the lessons learnt and recommendations are set out in the EGM research report (pp 112–113).  TCSG has also produced a training manual (Susan D Hartman, The Center for Social Gerontology, Adult Guardianship Training Manual (TCSG, 2002)) which is quoted widely in the EGM report.

Child protection mediation programmes were established in the USA in the early 1980s.  BC followed suit in the early 1990s and decided to test the use of mediation in child protection cases.  Throughout this research, the BC CPMP has been identified as a possible model for a court-connected adult guardianship mediation programme in BC. A number of similarities between adult guardianship and child protection were identified such as: vulnerability, capacity, family dynamics, concerns about abuse and power imbalances and the need for relationships to continue after the initial disputes are resolved.

Pilot projects were undertaken in Victoria in 1993 and in Surrey in 2001. Results of evaluations indicated a high success rate and that pre-mediation orientation sessions were found to be critical to the success as they enabled the parties to reframe their issues and arrive at the meeting more prepared and less defensive (EGM report, pp 72, 75–76).

So what is mediation?

Mediation is a means of alternative dispute resolution. It is a process in which an impartial third party, a mediator, facilitates the resolution of a dispute by promoting voluntary agreement by the parties to the dispute. A mediator facilitates communication, promotes understanding, focuses the parties on their interests, and uses creative problem-solving to enable the parties to reach their own agreement.  The process of mediation facilitates self-determination of the parties’ interests and avoids the need for the imposition of a court order.

Elder mediation

Elder mediation includes the mediation of disputes arising in the context of ageing. For example, it can be used in estate planning, powers of attorney, care, lifestyle choices, independence and self-determination versus safety concerns. Elder mediation tends to be multiparty and involve family and intergenerational dynamics. It can also involve third parties such as providers of health services, care and housing.  It requires a particular degree of knowledge, sensitivity and skill on the part of mediators.

Quoting from the US Association for Conflict Resolution, the report states (at p 24):

‘Elder mediation advocates for mutual respect and encourages all participants to understand the other participant’s perspective on the issue. It may prevent further family tension, division, estrangement, or the need for litigation.’

A number of characteristics have been identified by practitioners and in the literature as distinguishing elder mediation from other types of mediation (for example, N Solnick at p 24):

• It is often triggered by life events or changes in circumstances of an older person such as: the death of a spouse, a decline in physical, mental or emotional status or financial concerns.
• It may require the presence of support or resource persons.
• It may involve family conflict, including a history of past emotional issues affecting relationships and individual perceptions of a matter.

Guardianship mediation

Guardianship in Canada and the USA is a process by which the court appoints a substitute decision maker for an adult who is mentally incapable of making his or her own decisions. It may involve finance and property decisions and a wide range of health and welfare decisions including care, accommodation, contact, holidays, respite, and consent.  Taking the most effective, ‘least restrictive’ approach, a court-appointed guardian has his or her authority limited to the specific area of incapacity.  It is founded of the principles of individual autonomy, a ‘capacity-continuum approach’ and a respect for the allegedly incapable adult's ‘personhood’.

Guardianship is not limited to older adults, as it can become an issue anywhere along the course of life, for example, where incapacity may result from traumatic brain injury or learning disability.

The TCSG Manual quoted in the EGM report points out (at p 30):

‘Full guardianship constitutes one of the greatest deprivations of independence and liberty that a person can experience; the person typically loses most rights he or she has as an adult citizen. This loss includes such basic personal, contractual and legal rights as choosing where to live, handling one’s own finances, and making decisions about medical care.’

As a finding of legal incapacity has a significant impact on the rights of an older adult, whilst guardianship may sometimes be necessary to meet the needs of an incapacitated person, it should be considered only when no other less restrictive options are available.  For example, less restrictive alternatives that may be explored include, but are not limited to: powers of attorney for property or health and personal care; advance directives and crisis intervention techniques (including mediation, counselling, care giving and support services).

According to TCSG, the benefits of mediation include (at p 31):

• helping families explore alternatives to guardianship, thus avoiding the loss of rights that accompanies court-imposed guardianship;
• the retention of maximum possible independence and autonomous control over basic life decisions for older persons, while still addressing their need for assistance;
• including the older person in the decision-making process;
• avoiding the trauma of a court proceeding;
• encouraging consensus building within the family setting;
• fostering the preservation of relationships with family and friends, critical to ensuring that older persons with disabilities receive the best and most appropriate care possible;
• reducing ineffective and inefficient use of court resources;
• lessening demands on family and community caregivers by making maximum use of all appropriate community support services.

While the use of mediation in guardianship proceedings can be a valuable tool for resolving disputes related to concerns about the decision-making capabilities of older adults, it raises a number of distinct issues, practice challenges and ethical concerns. These are discussed in detail in chapters 2 and 3 of the EGM report, some of which are considered below.

The mediation process

Mediation usually involves several different stages:

Pre-mediation meetings: in which the mediator meets participants individually in advance of the joint session, are particularly valuable for screening for abuse and for family power dynamics so that the mediator can manage some of these issues effectively once the parties are in joint session.

Joint session: Mediation frequently begins with a joint session with all parties present when each party has the opportunity to describe mediation goals and the nature of the dispute. This is an opportunity to exchange information, explore interests and generate options with the assistance of the mediator. However, joint meetings may be inappropriate in cases where there is a high degree of hostility between the parties.  In such cases and the whole of the mediation can be made up of individual sessions. 

Individual sessions: During a mediation session, a mediator may move back and forth between the parties in a series of individual meetings. This is often referred to as ‘shuttle mediation’.

Mandatory versus non-mandatory

Non-mandatory or voluntary mediation refers to mediation processes in which disputants choose to participate voluntarily. Mandatory mediation refers to mediation which disputants are ordered or required to attend. The requirement to attend mediation may be set out in a statute, whereby certain disputes in the court system must be referred to mediation.

There are different types of mandatory mediation processes. For example, a court may refer parties to mediation, but the parties may have the right to refuse mediation. Alternatively, parties may be required to attend a mediation session, but not necessarily be required to participate once there. Or, in addition to being required to attend mediation, the parties may be required to make a genuine ‘good faith’ attempt to settle.

As mediation is by definition a voluntary and consensual process, it is understood that courts should never order parties to participate to the extent of requiring that parties must reach an agreement. However, several experts noted that in their experience, court ordered/mandatory mediation (in reference to mandatory attendance) was very effective and that without it, parties were much less likely to choose to try to resolve disputes through mediation.  Experts also noted it is common that parties who are required to attend mediation often choose to participate once the process is explained to them prior to, or at the start of, the mediation.

A number of experts recommended that indigent parties who are required to attend mediation pursuant to a mandatory mediation programme should be assigned an advocate or counsel to represent them, particularly in the case of parties with capacity issues.

Elder abuse

The EGM report (at pp 20–22) gives a useful overview of key issues relating to elder abuse.  The most common definition of abuse, originally developed by the UK organisation Action on Elder Abuse in 1993, defines elder abuse as ‘a single or repeated act, or a lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.’

Elder abuse can occur anywhere, including but not limited to the home, in hospital, in a care facility and in the community. Elder abuse can involve a single incident or a pattern of abuse and/or neglect, and be intentional or unintentional.

A number of factors can contribute to abuse, including social factors and relationship dynamics. Social isolation can make an adult more vulnerable to abuse or make it harder to access assistance. Older adults are sometimes abused by people they rely on for assistance, support or companionship; and also by younger family members and friends, who are financially or emotionally dependent on them.

The report reminds us that financial abuse is of particular relevance in the context of guardianship matters (p 21):

‘For example, family members or friends who are financially abusing an older adult may allege that the older adult is incapable of managing his or her finances as a strategy for obtaining access to the older adult’s money. It is essential that any mediator providing guardianship mediation services understand the dynamics and forms of financial abuse, as well as relevant aging and elder abuse issues. Strong knowledge and awareness of these issues will help to ensure that mediators practicing in the area do not mistakenly confuse indicators of abuse with signs of dementia or diminished capacity. For example, an older adult’s concern about why his or her money is missing is often “covered up” by the perpetrator’s claim that “my mother/father is just confused”’.

Research shows that there are common reactions to abuse. One is that it is often very difficult for victims to disclose the abuse. If abuse has occurred over a long period of time, the impact on victims can be profound.

Given the prevalence of elder abuse, mediators working with older adults must be well informed and trained to screen for abuse. They must be able to ensure that an older adult who may be a victim of abuse is safe and will not be disadvantaged by participating in mediation.

Best practices identified in the academic literature and by experts in the field recommend that screening for abuse and power imbalance is an important step that must be taken prior to mediation.

Issues which cannot be mediated

The EGM research revealed strong consensus that whether or not an adult lacks capacity is a legal question that must ultimately be determined by a court. It cannot be mediated.

Similarly, the fact of whether or not there is abuse cannot be mediated. Most experts agreed that cases involving serious allegations of abuse should not be mediated. However, a number of experts were of the opinion that certain cases involving financial exploitation may be appropriate for mediation.

However, as TCSG emphasises (quoted at p 50), legal incapacity ‘should not automatically be construed as lack of capacity to mediate … The question is not simply whether the respondent has capacity to mediate, but whether the person has the capacity to mediate with support.’  Even in certain cases where the respondent is not able to participate, ‘having the person in the room can often help focus on the person’s needs and remind the parties to continue to discuss those needs in a respectful manner.’

While the question has been raised regarding how mediation can be successful if the issue at the core of the dispute is excluded from mediation, in fact this approach is very similar to operational policies in BC’s Child Protection Mediation Project (CPMP). In child protection mediation the issue at the core of the dispute is whether or not a child is in need of protection, similar to guardianship mediation, where the questions at the core of the dispute are whether or not the adult is legally capable of making decisions and what is necessary to ensure their best interests.

In child protection mediation, issues such as developing a care and safety plan for the child can be mediated without making a determination on whether or not the child is in need of protection. Similarly, in guardianship mediation, care planning for an allegedly incapable adult can be mediated without making a determination of capacity. The success of BC’s CPMP strongly suggests that guardianship mediation could be very effective.

However, some types of cases cannot generally be mediated.  Experts have suggested that cases generally not appropriate for mediation include (at p 36):

• when the power differential between parties is great and cannot be overcome or compensated for by the involvement of a proxy or an advocate;
• cases involving older adults and people with disabilities where there is a history of abuse within the family; and
• elder abuse including financial exploitation, substance abuse or a history of intimidation of any kind.

Ethics, values and principles

(i) Power imbalances, safety and screening

Mediators must always be aware of power imbalances between disputing parties in mediation and must have solid skills for addressing such power imbalances.

The report stresses that this is particularly true in elder and guardianship mediation (p 36):

‘Older adults may have cognitive challenges or may rely on an adult child for care. An older adult who is overtly or covertly dependent on an adult child may find it very difficult, if not impossible, to express interests contrary to the interests expressed by the adult child. It is essential that the older person’s rights are protected, that he or she is not pressured to give up his or her legal rights, and that any agreements reached in mediation are ones that the older adult has entered into voluntarily, with a full understanding of the implications of the agreement.’

Screening for abuse and power imbalance is an important step that must be taken before mediation with an older adult can proceed. The mediator should always make the final decision on whether a case is appropriate for mediation or not.

The report gives some examples of strategies for neutralising power imbalances in mediation, including the following (p 38):

• ‘Ensuring that the adult is adequately represented
• Structuring initial presentations so that the adult is allowed to speak first
• Ensuring the neutrality of the site of the mediation
• Inviting experts for the adult who can convey information in an understandable manner
• Intervening and engaging in “reality checks” when necessary to clear up confusion and assuage the adult’s fears.’

Such measures are particularly important in elder and guardianship mediation involving, for example, an older person with cognitive challenges or an older adult who is dependent on another party for care. The research revealed that in the case of potential guardianship proceedings, the threat of guardianship may cause a respondent to feel pressured into an agreement that gives up their rights.

(ii) Confidentiality

Mediators are required not to disclose to anyone who is not a party to mediation any oral and written communications obtained throughout the mediation. One issue that may arise in the context of multi-party mediation, especially in elder and guardianship mediation, is the participation of professionals, who may be required by their governing bodies to report abuse or neglect. Some programmes have mediation agreements which contain clauses to permit such disclosure in certain circumstances.

(iii) Self-determination and capacity

Quoting from an article by Mary Radford (M Radford, ‘Is the Use of Mediation Appropriate in Adult Guardianship Cases?’ (2002) 31 Stetson LR 611), the report notes (at p 40):

‘Self-determination is the pivotal feature of mediation. Both the process and the outcome are the responsibility of the participants. The mediator has no authority to impose a decision or settlement on the parties, but rather is there solely to assist the parties in resolving the dispute in a way that is mutually agreeable.’

‘Mediation … is grounded in the principle of self-determination and presumes that the parties are capable of participating in the process and bargaining for their own interests.’

The fact that the capacity of an adult is typically the central issue in guardianship cases raises the concern about the appropriateness of mediation in guardianship matters. The TCSG Manual notes that:

‘Mediation assumes an ability of the parties to take part in a negotiation – to express opinions, evaluate options and follow through on decisions. For this reason, many people raise concerns about the appropriateness of mediation in guardianship cases, in which the decision-making ability of a party is often in question.’

The requirement that every party must be capable of entering into an agreement voluntarily and without coercion means that mediators in guardianship cases must pay particular attention to the adult’s capacity and be aware of any coercion or possibility of coercion of the adult by other parties. Radford acknowledges that: ‘The challenge in the mediation of an adult guardianship case is to determine whether the adult has the capacity to participate as a party to the mediation, either with or without representation’ and/or other support or accommodation of the mediation process.

Radford notes that ‘a more subtle obstacle to self-determination by an adult in an adult guardianship case is the tendency of family members, attorneys, judges, and perhaps even mediators to want to structure a framework that is protective of the adult but that may not necessarily protect the adult’s fundamental right to autonomy’. Therefore, the mediator must be aware of the potential for other parties in the mediation to assert their own values rather than those of the adult. Further, it is stressed that ‘the need for the mediator to protect the autonomy of the adult in a guardianship case does not necessarily violate the mediator’s impartiality and neutrality.’

(iv) Representation and support

The report emphasises the necessity in guardianship mediation of ensuring that the voice of the adult respondent is represented, whether or not the adult is capable of participating in the mediation in person.

The TCSG Manual emphasises that (at p 42):

‘the overriding question for the mediator when determining an adult’s capacity to participate in mediation is whether the adult has the capacity to participate in mediation with support - support may be in the form of a support person or representative such as a lawyer, family member or caregiver, or in the form of physical and/or other accommodations.’

Radford states that ‘the mediator should be aware of the need to make accommodations to maximize each individual’s ability to participate in the mediation process,’ such as accommodating visual and hearing loss and adjusting the schedule and timing of mediation to accommodate medications and other needs.’

Court-Connected Guardianship Mediation Programmes

While the focus of the EGM report is on services in British Columbia, chapter 6 provides details of the lessons learnt and recommendations from the evaluations and experiences in each of the US and Canadian jurisdictions. Appendix A provides an interesting comparative table of guardianship programmes in Ontario, Alaska, Ohio, Oklahoma, Wisconsin and Maryland.

Ontario is the only court-connected mandatory mediation programme in Canada that includes guardianship matters. The court directs the issues to be mediated. The parties must file a statement of issues and attend mediation, unless they apply for an exemption, and the mediator can issue a report of non-compliance.  The overall findings in the pilot project evaluation were that mandatory mediation was generally successful. There was strong evidence of significant reductions in the time taken to dispose of cases and decreased costs to the litigants. Approximately 40% of cases settled earlier in the litigation process, and in cases where the matter did not settle at mediation other benefits were noted.

The Alaskan programme is considered by many to be ‘the model’ for guardianship mediation programmes in the USA. Its evaluation included an assessment of the care and safety of older adults considered ‘at high-risk’ where the local Adult Protection and Safeguarding team was involved in the matter.  The evaluation of 103 mediations over 3 years showed that agreements were reached on some or all issues in 87% of the cases mediated and, if Adult Protective Services was involved in the case, agreements were reached 95% of the time and plans were created that enhanced the care and safety of high-risk adults.

In Alaska, Florida, and Ohio voluntary mediation programmes are operated. The court decides whether mediation is appropriate and Ohio has developed a Guardianship Mediation Screener checklist. There can be no mediation where there is a history of domestic violence.  In Florida, although the court orders mediation, the parties may terminate participation at any time by given written notice.

In Oklahoma any civil case filed in court is referred for mediation.  Both the parties and their representatives are required to attend and they must participate in good faith

In Wisconsin the court orders cases to mediation, but there can be no mediation in cases involving domestic violence, intimidation, substance abuse, too much of a power imbalance, if the party is unable to participate or be represented or in an emergency situation.  The parties required to attend may apply for a hearing to show cause as to why mediation should not occur or be modified.

In Maryland, Court of Special Appeals civil cases may be referred to mediation, although guardianship cases would not be mandated to mediation.

New mandatory mediation legislation in British Columbia

BC now has proposed legislation calling for mandatory mediation in adult guardianship matters.  Mandatory mediation provisions were included in the major reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act 2007 (‘Bill 29’).

Once in force, it is anticipated that in cases where there are disputes concerning a guardianship application, that the parties will be required to attend mediation and that the guardianship hearing will not proceed unless mediation has been conducted in accordance with the regulations.

Regulations will be drafted to set out precisely how the mandatory mediation provisions will apply to contested guardianship applications.  They will provide necessary guidance with respect to a number of issues such as: exemption, nature and extent of participation, the rights and duties of the parties, confidentiality, time limitations and procedural issues, costs and sanctions, qualifications of mediators, and when a matter may proceed to a hearing without mediation.  The EGM report sets out issues for consideration when drafting regulations (at p 59).

Where are we in the UK?

In England and Wales, the principles of best interests and less restrictive alternative are already enshrined in the MCA 2005.  An act done, or decision made, under the Act for or on behalf of the person who lacks capacity must be done, or made in his best interests (s 1(5)).  Further, before the act is done, or the decision made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (s 1(6)).

Chapter 15 of the MCA 2005 Code of Practice provides guidance on the best ways to settle disputes about issues and promotes the use of mediation. Mediation is usually less stressful, more cost effective and quicker than court proceedings. It offers a wider range of solutions than the court, it can settle a dispute in a way that is less restrictive for the person and where people are not communicating well or understanding each other’s point of view, it can improve relationships and prevent future disputes.  Therefore, the use of mediation promotes the principles of best interests and less restrictive alternatives in a way that is rarely achieved by court proceedings.

Applications to the Court of Protection by applicants falling into the categories under s 50(1) of the MCA 2005 do not require permission.  However, other applicants do require permission and in considering such applications, the court is subject to the principles of the MCA 2005.  When deciding whether to grant permission for an application to be made, s 50(2) of the MCA 2005 requires the court to consider the reasons for the application, the benefit to the personal lacking capacity and whether the benefit can be achieved in any other way.  It can therefore consider whether the parties should be directed to use mediation before an application is issued.

The application can include a request for an order that the parties attend mediation. Once proceedings are issued, the court can consider whether all or any of the issues, which are the subject to application are suitable to be referred to mediation. It may order the parties to attend mediation and can decide whether it merely orders the parties to attend, or whether to include the words ‘with a view to reaching an agreement’. This does not mean that the parties are being ordered to come to an agreement. The court may decide to make such orders at an early stage or later in the proceedings.

In my role as solicitor at Wiltshire Council, I encourage the use of alternative methods of resolving disputes, including mediation, both before and during proceedings. To date, my own experience of cases where there is a deeply entrenched family dispute resulting in a ‘tug of love’, often over a parent, is that before proceedings are issued, it is difficult to get all the opposing family members to agree to mediation. Such disputes are detrimental to the parent who can feel emotionally torn by such a dispute. A parent without capacity, for example as a result of advanced dementia, though unable to make the decision in question, may be acutely aware of the family dynamics.  They may be so keen to resolve the family dispute that they suggest ways of doing so which may not be in their own best interests. For example, ‘I can live one month with X and one month with Y’, when in fact a change of environment and care does not promote stability for a dementia sufferer.

Mediation is suitable for cases where people are not communicating well or understanding each other’s point of view. It can improve relationships and it is a good option when it is in the person’s best interests for parties to have a good relationship in the future.

The importance of mediation in Court of Protection matters was emphasised by Mr Justice Henderson in the case of In the Matter of S, D v R and S [2010] EWHC 2405 (COP), [2010] COPLR Con Vol 1112. In this case while Mr S was found not to have the capacity to make decisions in relation to the litigation, he had clear wishes concerning the case which could not necessarily be met by the court proceedings. Mr Justice Henderson said (at paras [33] and [154]):

‘It is the kind of case, I would venture to add, which cries out for mediation and a realistic settlement …

A trial of the action is likely to be a painful and damaging experience for all concerned, and I repeat my hope that the parties will even now, be able to come to a settlement.’

Conclusion

I highly commend the EGM research. It is thought provoking and contains a wealth of information gathered from experiences in other jurisdictions over three decades.  In addition to the information contained within each chapter, references are made to numerous pieces of valuable written work, too many to mention here.  The research has also inspired me to consider written materials on the role of elder mediation in the prevention of abuse, which I will share with the vulnerable adult safeguarding team and other local authority colleagues.

The question for all bodies and professionals involved in elder care and deputyship now is, how can we promote and increase the use of mediation in the UK?  We can learn a great deal from the development and experience of mediation in the USA and Canada.  There is much that could be done in the UK to promote and encourage the use of mediation in cases before and after the issue of proceedings.  I advocate for the establishment of a working group with representatives from the Court of Protection, the Law Society, Bar Council, Legal Services Commission, lawyers, experts and stakeholders in this field, with the aim of promoting and developing the use of mediation in elder care and deputyship disputes in the UK.