Mental capacity concerns in family mediation

Family dynamics are complex at the best of times. When one family member is unwell, stress and worry can quickly lead to friction and mistrust among siblings and parents alike.

On top of this, the decision to divorce is lifechanging for both the couple and the family around them, particularly when there are family businesses, estates and trust structures in place.

Fractures can happen quickly and become entrenched. Keeping lines of communication open is crucial.

While mental capacity issues can arise at any age, it is inevitably at the forefront of our minds when mediating or advising older couples, often referred to as “grey divorces”, a phrase I personally feel risks minimising a decision, albeit later in life, to start afresh.  We continue to see older divorcees prioritising their own happiness and financial independence; but this can cause concerns amongst adult children, particularly if new partners are on the scene or one parent is unwell.

Where concerns are raised about capacity, family mediation can be a flexible and positive space for discussions about how an individual is, what support they would benefit from and how capacity assessments can be managed.

Degenerative diseases and diagnoses during the divorce can risk a settlement being delayed or unwound later on unless handled carefully.  Simply being unwell or having a mental illness of course doesn’t mean one lacks mental capacity.  People must be treated as if they have capacity unless there is evidence otherwise.  Capacity can fluctuate and is decision specific.  Crucially, people must be supported to make their own decisions where possible.  While they have capacity, it is also vital to ensure people have made Lasting Powers of Attorney (LPAs) which appoint a trusted person to make decisions on their behalf if/when they are no longer able to do so themselves.

Building a supportive team around the divorcees and taking a collaborative, problem-solving approach is essential.  Mediation can provide a carefully managed forum for sensitive conversations, to ensure that all parties are able to listen and feel heard. The environment can be carefully managed so that each person has the right support in place to engage fully in discussions. Practical considerations about the location, time, lighting, furniture and refreshments can be important, alongside the fundamentals of who attends and who is in which room.

Mediation can involve all relevant parties, including family members, trustees and business partners, provided the parties and mediator agree and everyone signs up to the terms of the mediation.  Crucially, mediation privilege and confidentiality can give everyone the space to speak frankly and seek compromise, without the worry that any proposals or suggestions could be referred to in solicitors correspondence or court proceedings.

Choosing mediation from the outset can be vital to preserving relationships and minimising the emotional and financial cost of divorce to the family as a whole.