Canadian Centre for Elder Law (CCEL)--elder and guardianship mediation project.

• Jurisdiction: Australia
• Author: Butt, Emma J.
• Date: 01 January 2013

I BACKGROUND AND PROJECT OVERVIEW

The Canadian Centre for Elder Law ('CCEL') recently completed a legal research project, funded by the Law Foundation of British Columbia, relating to elder and guardianship mediation. The report of the Elder and Guardianship Mediation Project (the 'report') was published in January 2012 and includes a number of materials in support of elder and guardianship mediation in British Columbia ('BC').

Canada's older population is growing at an unprecedented rate. In recognition of this growth, canadian governments at all levels have been responding by introducing and supporting the development of programs, policies and legislation aimed at addressing the needs of Canada's older population. One example is the Federal Elder Abuse Initiative, a national elder abuse awareness campaign launched in 2009, entitled 'Elder Abuse--It's Time to Face the Reality'. (1) As a part of this initiative, the federal government launched a nation-wide advertising campaign involving a series of television, Internet and magazine advertisements aimed at raising the general level of understanding and awareness of elder abuse and its many forms. (2)

Over the last decade, there has also been a noticeable trend within a wide range of professional and service provider communities across Canada towards the development of practices and services targeted at best meeting the needs and demands of older clients. The birth of 'elder law' and 'elder mediation' is a part of this trend.

The evolution of legal and mediation practices focused on matters and disputes arising in the context of ageing has led to the development of specialized practice areas referred to as 'elder law' and 'elder mediation'--elder mediation may also include mediation of adult guardianship matters involving older adults. Recent legislation and private practice experience in Canada indicates that elder and guardianship mediation are important and positive new areas of legal expansion in Canada generally, and in British Columbia ('BC') in particular.

As elder and guardianship mediation are developing and continuing to expand, there is a critical need for comprehensive research and analysis relating to a number of challenging issues and questions raised by these emerging practices, as well as guidance for practitioners working in these dynamic new areas.

The Elder and Guardianship Mediation Project creates the first comprehensive report on elder and guardianship mediation in BC and Canada. The report includes an annotated bibliography, a comparative table of adult guardianship mediation program frameworks in Canada and the United States ('US'), a summary of the feedback and recommendations from experts and stakeholders consulted during the course of the project, and survey results. The report presents recommendations for best practice in Canada in elder and guardianship mediation related to mediation models and styles, training and practice standards for elder and guardianship mediators, and ethical standards in elder and guardianship mediation. The report also presents a distinct set of recommendations related to the design and development of a court-connected adult guardianship mediation program in BC in response to the mandatory mediation provisions set out in recent BC legislation. Ultimately, the aim of the project is to develop informational resources to assist those engaged in the fields of elder law and elder and guardianship mediation.

II WHAT IS THE EGM PROJECT ABOUT?

The EGM Project examines the nexus between elder law, mediation and adult guardianship. The report brings together research on ageing and the law, with particular consideration of certain legal and other issues that commonly arise in the context of ageing, which may have a significant impact on older adults. The report considers how the legal and mediation communities and legal and mediation practices are responding and evolving to address these legal issues and other concerns of older clients. Perhaps most importantly, this report identifies and provides a discussion of some of the unique challenges and concerns that arise in the context of these expanding practice areas.

The report is comparative in its approach. It examines the development of elder law, elder mediation and adult guardianship mediation practices in BC, Canada, and in the US with the goal of providing recommendations for best practice in elder and guardianship mediation and for a court-connected mandatory mediation program in BC. The report considers different mediation models and styles and comments on best practices as identified by experienced service providers. As well, the report identifies and analyzes the practical and ethical issues that confront mediators handling cases involving older persons with diminished mental capacity with a view to formulating best practices. Further, the report considers and presents recommendations related to training and practice standards for elder and guardianship mediators, including core competencies. Finally, the report compares the experience with voluntary and mandatory mediation of ageing-related and guardianship matters in Canada and selected US jurisdictions where court-connected guardianship mediation programs exist and presents recommendations for a court-connected guardianship program in BC. Although elder mediation is in its pioneer phase, much can be learned from the...