Elders Mediation

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Elder Mediation overview

Mediation for the elder and vulnerable person is something that has been used in the USA for many years. In an article in the Elder Law Review in 2002 Doctor Doron summed up perfectly the advantages of mediation by saying:

“Mediation has received professional and public attention as a mechanism of alternative dispute resolution…”

“Mediation can provide a beneficial alternative to the adversarial process”

“As a potential tool to prevent or avoid formal elder guardianship, mediation offers various advantages such as maintaining one’s privacy, addressing the non-legalistic emotional aspects of the dispute, and providing for unique and imaginative solutions, all at less cost than formal guardianship litigation…”

It is now becoming more popular on this “side of the pond” and elder mediation can be used to make a valuable contribution to the welfare of those who suffer from a conflict associated with ageing, disabilities and frailties. Elder people also appear to prefer the gentler and healing process of a mediation which is geared towards facilitating solving problems rather than the lengthier, more costly, more confrontational and adversarial process of litigation.

The requirement to consider mediation

Litigation is governed by the Civil Procedure Rules (“CPR“) and all solicitors who conduct litigation are governed by the Overriding Objective which is to enable the Court to deal with cases justly and at proportionate cost. The parties are required to help the court to further the overriding objective. The Court has a duty to manage the cases. Under CPR 1.4(e) active case management includes:

“(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;”

Therefore, the concept and use of mediation is a central part of the parties and the court managing the case efficiently and proportionately.

Before solicitors issue proceedings they have to comply with pre-action conduct protocols. There are various protocols which cover different areas of litigation. However, there is no protocol which specifically governs the Court of Protection or Lasting Powers of Attorney (“LPA’s”) or litigation involving an elder person. In such circumstances the litigation is governed by the Practice Direction for the general Pre-Action Protocol which states:

“Settlement and ADR

8. Litigation should be a last resort. As part of a relevant pre-action protocol on all this Practice Direction, the parties should consider whether negotiation and is or some other form of ADR might enable them to settle the dispute without commencing proceedings.

9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers should be made before proceedings are issued.”

Therefore, the Overriding Objective makes litigation the last resort and the Pre-Action Protocol relating to the Court of Protection and LPAs requires all parties to consider the use of mediation.