Elders Mediation

The Mediator's checklist

The Mediator's Checklist

This list is not all inclusive but is meant to prompt the mediator to reflect on the differences of approach to the mediation necessitated by the involvement of an elder/vulnerable person

1. Check the wording of the Deputy Guardianship Order/LPA

• What powers are contained in the LPA?

• Are there restrictions?

• Is it for finances or health and welfare.

• Do they have the power to resolve the issue in question?

• Are any preferences expressed in the documentation?

• Is there a Memorandum of Wishes?

2. Establish the mental capacity status of the elder

• Remember the presumption of capacity unless it is established they lack capacity (s1(1) MCA)

• See note on Mental Capacity Assessments

• Use guide on Cognitive Conditions

• See note of Elder’s Ability to Make a Decision

3. Consider the use of the pre-mediation meeting

• Make your first assessments of capacity and the effect of the ageing process

• Work out the family dynamics

• Look for power imbalances

• Determine who should attend

• Discuss the potential need for an advocate

• Set out the structure and ground rules for the day of mediation

4. At all times in the process lookout for abuse and consider the following abuse risk factors:

• Cognitive impairment,

• Psychological distress,
• Social isolation,
• Medical conditions,
• Age/sex, race/ethnicity,
• Socio-economic status,
• Functional impairment

5. Check the abuse policy was sent out with the information pack and is incorporated into the terms of the mediation agreement.

6. If abuse is detected, consider using the abuse policy to either adjourn, suspend or terminate the mediation.

7. How are you going to conduct the mediation to ascertain and reflect the wishes of the vulnerable adult?

8. Would it be beneficial to meet with the vulnerable adults prior to the mediation?

9. Evaluate the vulnerable adults ability to attend at the mediation?

10. Do you need to book the services of an independent mental capacity advocate to help communicate the wishes of the elder person who lacks capacity?

11. Is the vulnerable adult worried and do you need to sit down and explain the process with them to reduce their fears before the mediation starts?

12. Repeat the previous question at all points throughout the mediation.

13. Remember it will be necessary to conduct the mediation to suit the pace of the vulnerable adult.

14. What is the maximum length of caucus session which the vulnerable adult can withstand easily? Consider:

• should sessions with the vulnerable adult be limited to say half an hour because that reflects a period over which they can concentrate;

• is the vulnerable adult better at certain times of the day;

15. Consider the room arrangements:

• do you need to have a special room for the vulnerable adult which is quiet, secluded, tranquil etc

• would the vulnerable adult be more at ease if the questions were asked of him/her in their own home rather than at the solicitor’s office;

• would Skype or a telephone conference facility work.

16. Conduct a mental capacity test before the mediation starts and repeat it at various stages of the mediation if you believe the vulnerable adult has deteriorated

17. Review at all times the vulnerable adult’s ability to decide the issues – remember that establishing lack of capacity is both time and issue specific;

18. Is there a better method of communicating matters to the vulnerable person or providing the information through pictures, drawings.

19. How will you actively engage with the vulnerable adult during the mediation

20. Explain the best interests principle to the parties and leave them with our explanation leaflet

21. Consider the person in control and how the power might be rebalanced (see note Control and Rebalancing the Power)

22. If you are going to challenge the control or power of the vulnerable adult or one of the parties reflect on how the vulnerable adult/they will feel and the best way of doing this

23. Will the vulnerable adult be able to sign the mediation agreement or will the representatives sign?

24. Who can sign the Mediation settlement agreement?

25. Does the settlement need to be approved by the Court of Protection?