The Select Committee(reproduced in full in appendix A)Alternative dispute resolution:Select CommitteeAlternative dispute resolutionAlternative dispute resolution:Select CommitteeAlternative dispute resolution
19.15The Select Committee of the House of Lords conducting post-legislative scrutiny of the MCA 2005
1Mental Capacity Act 2005:post-legislative scrutiny, HL Paper 139, March 2013, paras 224–232; available at: www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf. considered the role of mediation. It noted a limited pilot scheme proposed by the Office of the Public Guardian (OPG), though was disappointed by the limited terms of the pilot and the fact that mediation would be conducted by telephone, in an area where building relationship and trust is crucial. It concluded that:
•mediation in the Court of Protection must comply with the decision-making framework of the MCA 2005 and provision must be made to ensure representation of P’s views and interests;
•mediation would be beneficial in many cases prior to issue and consideration should be given to making it a pre-requisite for launching proceedings, especially financial proceedings where the costs will fall to P’s estate.
In its response (‘
Valuing every voice, respecting every right’2‘Valuing every voice, respecting every right: Making the case for the Mental Capacity Act – The Government’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005 (June 2014)’: www.gov.uk/government/uploads/system/uploads/attachment_data/file/318730/cm8884-valuing-every-voice.pdf.) the government agreed mediation would be suitable in some property and affairs cases, but less so in health and welfare cases. The government did not consider mediation should be a prerequisite to issuing as this would detract from its voluntary nature.
19.16There is therefore no formal structure to the use of ADR in the Court of Protection, although the parties are strongly encouraged to use it. In practice the two most commonly used forms are round table meetings and formal mediation.