Mediation should be attempted in a far wider range of cases – involving both adults and children – than undertaken to date. Mediation usually refers to the agreement and instruction by the parties of an independent, qualified mediator who will not determine the case but will simply seek to bring the parties ultimately to a mutually satisfactory resolution of the case. Even if resolution is not achieved, mediation can be very useful at least in ensuring that both sides properly understand each other’s positions and concerns in an understandably fraught situation.
Mediators approach a case objectively and without any pre-conceived or entrenched views. In the experience of the authors, the sooner the attempt is made formally to mediate the case, the greater the prospect of success. This is not to detract from the skills that specialist counsel and solicitors will have in trying to narrow and settle issues in any given situation. It is implicit that the parties will do their best to try and resolve matters without needing to take matters before a court: however, in disputed withdrawal or withholding cases (typically) the family are fighting for the prolongation of life and any compromise that will deprive them of that hope will rarely be palatable. Sometimes families may not properly understand – or may not wish to hear – the objective legal advice they have received; for example, thinking that unfavourable legal advice indicating the court’s likely position on a case is simply the product of the fact that their lawyers are insufficiently ‘on their side’ and another legal team is required. Also, emotions may run high amongst those treating the patient, for example, if they have come, after anxious deliberation, to the conclusion that the patient should be allowed to die, or possibly because of frictions with the family involved. Further, there may be debates within the treating team about the ethical rights or wrongs of a proposed withdrawal of treatment. Thus, the involvement of an independent third-party mediator may serve to reduce the temperature all round and lead parties to consider new methods of addressing differences and new routes to resolution. Those mediators who have material medical or legal experience may be better placed to ‘stress test’ the participants’ proposed strategies or options.
The mediator will guide the parties as to what documentation they require in advance of the mediation meeting. They rarely require all the papers in a case but will often be assisted by the parties’ providing very short position statements in writing and by a clear dramatis personae of all the parties and lawyers involved. It is essential that there is direct access to those with power to take decisions at the time of the mediation.
In conclusion, it would be wise for parties to heed the words of Francis J in his conclusion of judgment in the Gard case and consider mediation in all contentious withdrawal cases:
‘I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee.’