Mediation

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Caroline Bielanska is an accredited mediator, qualifying from the School of Psychotherapy & Psychology at Regent’s University, London. Caroline is a leading expert in the Mental Capacity Act 2005, health and social care law for adults, and writes and trains extensively in these area of law.  She is a member of the Civil Mediation Council and one of a limited number of Court of Protection mediators.

Caroline is the ultimate problem solver- looking for a realistic and achievable resolution, which takes into account practical and emotional needs of those in dispute. 

EXAMPLES OF CAROLINE'S MEDIATIONS

• working with three adult children who were in dispute about where their elderly mother, who had dementia and other disabilities should live and facilitating them to reach an agreement.
• mediating in a dispute as to who should be the financial deputy. As both parties were not legally represented assisted in writing the draft Court order for the court to consider.
• mediating where the dispute was about the way the family member attorney made financial decisions, which the local authority did not agree with and was seeking the attorney's removal by the court. Following mediation the local authority withdrew its application and the attorney was provided with additional support.
• working with family with long term distrust and animosity  to agree contact with an older family member.
• mediating in a dispute about a reduction in funding for care by a local authority.
• working with a care home and family member about visiting their relative, where visits were restricted to find a workable solution for all.

Family and care disputes that centre around a loved one who lacks mental capacity and/ or lives with a disability can be extremely distressing for all involved. 

People may have their own view of what has gone wrong and what needs to be done to put it right. When  views are not shared by all, disputes can arise - even within families who have previously seen eye to eye. The person or their family may be in dispute with a public body over  funding or commissioning of the care package. 

Going to Court to resolve the matter takes time and expense, is emotionally draining and may leave people feeling they have not been listened to. Even when the Court has made an order, it needs to be implemented and family members are left to pick up the pieces of what has become a fragmented family. 

Mediation is an alternative approach to resolving these difficulties. 

Mediation is entirely voluntary- parties have to want to participate. It allows the process to remain within the parties' hands, can prevent strained relationships from deteriorating further,  and is conducted in a constructive rather than a destructive manner. 

The Mediator’s role is to help the parties find a solution to their dispute. It is not about one party winning and another party losing, but a process where all parties (with the Mediator's help) find an alternative solution, which they find acceptable. 

The Mediator does not adjudicate on the issue- as they must remain impartial (meaning they do not have any stake in the outcome of the issues agreed) and neutral (meaning they have no bias toward any party).

Everything that parties say to the Mediator is confidential and any information shared with each party is confidential. This information cannot be used in Court proceedings.

Parties who attend a mediation, must be in a position and willing to settle the dispute. If they are not in a position, for example the issue needs to be put to another party, then mediation may be limited to clarifying and resolving some issues.

Remote or in-person mediation

Sometimes it is not possible for the mediation to take place face to face, particularly where parties do not live close to each other.  It is possible for the  mediation to be conducted remotely, through Zoom, where  each party can go to  a 'breakout room' for private meetings.

Parties can come together in a joint meeting with everyone present in the same virtual room where appropriate.

Explanation of the Mediation Process

1. Agreeing to Mediation

Once parties have agreed to mediate and decided on their mediator, the Mediator will prepare a draft agreement, which includes terms and conditions of mediation and the issues which are in dispute. All parties must sign the agreement.

2. Pre- Mediation conference

The mediator will send to all parties a pre- mediation questionnaire, which sets out an outline of the dispute. This allows the Mediator to work out what information each party needs to provide for the mediation date itself. This is important, as without relevant information the mediation can stall. It is rarely necessary to compile the equivalent of court trial bundles, as mediation is not a trial of the issues, looking to see who has the best evidence, but rather to look at common interests and opportunities for resolution.

The parties should send the information they wish to have in support of the dispute to the Mediator at least 5 days before the mediation day. Most importantly, a position statement should be supplied with any information which is referred to in that statement, or which will needed in the Mediation. The position statements of each party are not shared and remain confidential unless parties wish their statements to be shared.

3. The mediation day

The mediation process is flexible, but it will often start by a joint session with all parties. The mediator will outline the day and confirm the issues to be resolved. 

Each party is given the opportunity to tell their story uninterrupted- giving them the chance to frame the issues as they see them. If parties are represented, their clients should speak for themselves. Representatives may also make statements. The rationale behind these statements is not a search for the truth; it is a way to help solve the problem, by parties sharing what is important to them. 

The joint session is followed by the Mediator seeing each party in breakout rooms separately to gather more information, explore their interests, clarify misconceptions and look at barriers to resolution. 

The Mediator shuttles between the breakout rooms, seeking to find common goals between the parties. This shuttle process allows the Mediator to identify issues which are able to be settled.

The Mediator is looking at options which meet all parties interests, moving beyond fixed positions and helping parties see what those options might be. These options may be developed with each party (and their representative if they have one) or in a joint session, should parties feel enough trust to work together on a possible solution. The options could be exploring a hypothetical plausible scenario, or a mediators proposal where the mediator puts a proposal on the table and the parties take turns modifying it. 

Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This could be separately undertaken with each party or jointly.

If parties reach an agreement, the Mediator may assist the parties in drafting an agreement. 

Most disputes are suitable for mediation and include:

• Disputes about care and support
• A person who lacks mental capacity may have view of about the dispute and may wish to be involved
• Disputes as to who should be the deputy
• Disputes about how an attorney or Court appointed deputy makes decisions
• Residency, care and contact disputes, which do not involve allegations of abuse
• Objections to the registration of Enduring or Lasting Powers of Attorney

Any decision that is made on behalf of a person who lacks mental capacity must be made in their best interest, rather than in the disputing parties’ best interest, following a process set out in the Mental Capacity Act 2005.   

Where a person lacks mental capacity, where court proceedings have been commenced, the mediation outcome will usually be put to the Court for its approval, as the Court will need to see the solution is in the person who lacks mental capacity’s best interest.    

The Mediation Fee

If a party qualifies for legal aid, the hourly rate will be the legal aid rate. In all other cases the following apply:

• 3 hour mediation is £1500 
• 6 hour mediation is £2900

If the mediation goes over the allotted time, an hourly charge of £250 applies.

The fees include VAT, the preparation time, any pre-mediation telephone discussions, correspondence and administration.

The fee falls to be paid within 7 days of the mediation. The fee remains payable if the parties settle before the expiration of the booked time for the mediation.

What is not included in the fee but must be paid?

• Mediator travel expenses
• Mediator overnight accommodation expenses (if needed)
• Venue hire and refreshments
• Costs of venue/accommodation and refreshments are to be provided by the parties.

Cancellation Terms

Unless cancellation takes places more than 7 working day prior to the mediation date, a fee of 50% of the agreed fee is payable. If the mediation be cancelled in advance of 7 working days prior to the mediation date, no fee is due.  

Caroline Bielanska has successfully resolved many disputes  concerning people who lack mental capacity and/or who live with illness or disabilities. In the rare event that things do not go as smoothly as you had wanted, and wish to make a complaint, please email:

cbielanska@gmail.com, setting out your complaint.

Your complaint will be acknowledged within 5 working days.

An investigation and response will be provided within 21 working days. If there is a reason in which it is not possible to respond within this timescale, you can expect to informed promptly in writing, with details of the reason and revised timescale.

If you are dissatisfied with the response then you can take your complaint forward via the Civil Mediation Council Members’ Complaints Resolution Service:

http://www.civilmediation.org/governance/13/complaints-resolution-service

registrar@civilmediation.org

cbielanska@gmail.com