Safeguarding adults: Mediation and family group conferences

Mediation - The process

Contact, referral and screening

Where a social care service, community mental health team or other professional believes that mediation may be appropriate, they should ensure that the the person and other interested parties agree to being referred to mediation. The referrer should able to provide literature to explain what mediation is and what it involves. SCIE’s At a Glance summary on mediation and family group conferences may be useful.

Local policy should detail the criteria for referral, and should also ask the following questions:

• Has the risk of imminent harm been addressed? If there is imminent danger, other agencies must deal with safety issues before moving to mediation.
• Is this a civil dispute? Civil disputes are appropriate for referral, and mediation is an alternative to court-based processes for resolving civil disputes.
• Has any relevant court process been completed?

The referrer can then approach a mediation service to screen the case for suitability. If the case is accepted, the mediator will contact the potential participants to arrange a series of pre-mediation meetings. If it is not, the mediator should inform the referrer of the reasons why the case is unsuitable.

Pre-mediation meetings

‘Pre-mediation meetings’ help to assess the suitability of the case for mediation as well as enabling the mediator to:

• identify the issues that can and cannot be mediated
• ensure that appropriate participants to mediation have been identified and determine who should be at the meeting
• inform the participants about the mediation process, answer questions and guide the participants on how to present the issues that concern them during the joint session
• ensure that all participants understand their role at mediation
• inform the person of other less restrictive options they may pursue (for example, legal advice, counselling or psychotherapy)
• determine what help and support a person may require in order to engage as fully as possible with the mediation process
• identify any capacity issues
• identify specific cultural issues that might influence a person’s willingness to attend or participate in mediation
• ensure that all necessary information is available to the participants – e.g. about community and other social services
• screen for family power dynamics so that the mediator can manage some of these issues effectively once the participants are in the mediation joint session
• screen for domestic violence and abuse prior to a joint mediation session.

Mediation with older adults requires the mediator to be aware of specific issues that face older adults and their families, including elder abuse, ageism, capacity and consent. To ensure that pre-mediation meetings are conducted thoroughly and sensitively, mediators must have received appropriate training on the legal, ethical, social and practice issues raised by elder mediation (CCEL, 2012).

See the training and accreditation section in the Information for commissioners resources.

Agreement to mediate

After the pre-mediation meeting, if the issues that the mediator has identified are considered suitable for mediation and the participants agree to mediate, the mediator should enter into a written ‘Agreement to Mediate’ with the participants before beginning. This ensures that the parties understand the terms and conditions of the mediation, such as the confidentiality of oral and written communication and the right of the mediator to terminate mediation (CCEL 2012).

Arrangements for the meeting

The mediator will arrange a time and place for the meeting that everyone is happy with. Mediation should take place in a private setting, free from interruptions and disturbance, and be fully accessible for any participants with disabilities. The mediator’s premises must be suitable, with separate waiting areas and at least two mediation rooms so that the mediator can see the participants separately. Mediation typically takes place on one occasion during the course of a day, or may take place over a series of shorter appointments. This depends on the issues to be mediated as well as the mediator’s duty to accommodate the needs of the participants to allow them to engage fully in the joint session. This is particularly important with regard to people who lack mental capacity (CCEL 2012).

Mediation: models and styles

Facilitative, interest-based mediation is generally considered to be most appropriate for elder mediation (CCEL 2012). The mediator helps the participants to identify their underlying interests, move beyond their positions and work creatively towards a solution. A facilitative, interest-based mediator does not try to influence the outcome of mediation, apart from ensuring that the issues introduced by the participants are all dealt with.

Transformative mediation is another style of mediation where the aim of mediation is to transform the relationship between the participants.

Two mediators can offer co-mediation. This model is recommended for multi-party, multi-issue mediation, which is common where mediation involves larger numbers of participants, including older people, family members, friends and others who are willing to give support (CCEL 2012).

The mediator facilitates communication, promotes understanding, helps parties to focus on their interests rather than their positions, and encourages a creative approach to problem-solving to help the parties reach their own agreement. The nature of the mediation session varies depending on the issues to be mediated and the needs of the parties.