Elder mediation: promising approaches and potential pitfalls.

• Jurisdiction: Australia
• Date: 01 January 2013
• Author: Braun, Joan
• Published date: 01 January 2013
• Author: Braun, Joan

I INTRODUCTION

Elder mediation is a new practice area, which is gaining increased attention as a new and promising approach for resolving disputes between older adults and family members or other third parties. However, although this approach has great promise, there are some hidden dangers particularly for older adults with diminished decision-making capacity or who have experienced abuse. These situations can be very complicated. Unless the elder mediator clearly understands the issues and can rely on established best practice guidelines to inform his or her approach to the case, the mediator will not be able to ensure the safety and protection of the legal rights of the older adult participant.

However, if proper safeguards are in place the legal rights of the older adult participant can be protected, and older adults and their families will be able to avail themselves of the positive benefits of this dispute resolution process. safeguards include the following: research based policies, procedures and best practices for situations where there is abuse or diminished capacity, effective training for elder mediators about abuse and capacity issues, and practice tools such as checklists and step-by-step guides. These will give guidance to elder mediators about how to proceed when specific complex legal and ethical issues arise in the mediation context.

In this article I will provide an overview of relevant literature and best practices and training developed in the elder mediation field to date, and will give examples of Canadian models that demonstrate promising and innovative ways for dealing with elder abuse and capacity issues. I also will make recommendations for further future research and development in the elder mediation field. Although examples provided will be Canadian, the information also will be relevant for elder mediators and elder law practitioners in other jurisdictions who face similar challenges.

A Background

Mediation is a term that can refer to quite a broad range of processes and there is no universally agreed upon criteria to determine whether a particular process fits under the mediation umbrella or not. The following definition has been agreed on by several leading organizations:

Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to the dispute. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired. (1) Elder mediation refers to mediation where the dispute involves an older adult and another party, or contains issues that have a particular impact on older adults. Examples of common issues that can be resolved through elder mediation include the following: disputes over care giving responsibilities, disputes regarding future financial planning, and conflicts between older adults and the care facility in which they reside.

Conflicts often arise in families during periods of transition, where there has been a decline in the older adult's health, over matters such as what type of caregiver assistance is needed. For example, family members may disagree with the older adult's decision to decline assistance and may believe that he or she is at risk of harm. Conflict between elders and their families on issues such as these, if not resolved before they escalate, can result in estranged families or unpleasant legal conflicts in court.

B Current Best Practices and Training for Elder Mediators

Elder mediation is a new practice area and academic research regarding best practices within the elder mediation context is sparse. Most existing literature is from the United States where several organizations and leaders in this new field have researched and written on the topic of ethical and training standards for elder mediation. (2) The only comprehensive Canadian research project on elder mediation, carried out by the Canadian Centre on Elder Law, is summarized in the Elder Guardianship Mediation Project Report. (3) This research project examined relevant legislation and elder mediation programs throughout North America.

Some scholars in this new and emerging field have identified concerns about using elder mediation to resolve elder disputes in certain situations, such as where guardianship matters are in dispute. Some older adults may bargain away their rights in an attempt to preserve relationships with family members who are applying pressure or coercion to obtain access to their assets. Since mediation occurs in the private sphere, older adults do not have the protection that comes with participating in a court hearing where evidence and agreements receive scrutiny to ensure they are fair. (4)

It is important that elder mediators receive appropriate training about guardianship, capacity and elder abuse so that they will have the skills and knowledge necessary to ensure that the legal rights of participants are protected during the mediation process. However, further research is needed to identify core elder mediator competencies necessary to deal with these issues, and the training required to ensure they develop these competencies. In addition, best practices need to be created with specific procedures for situations where abuse or capacity issues are present and elder mediators need to be trained on these.

The need for specialized training for elder mediators was identified in previous research along with necessary training topics. For example, the EGM Report provides a detailed list of recommended training issues for elder mediators practicing in British Columbia, Canada. These recommendations are based on an extensive literature review and interviews with leaders in the elder mediation field. The findings of the EGM Report concur with recommendations for training outlined in the ACR Training Objectives, a document that was created by a committee of experts in the elder mediation field.

The ACR Training Objectives set out 22 different objectives for training. (5) There are some differences between the training issues noted in this document and those listed in the EGM Report. However, both agree that the following topics should be included in training for elder mediators:

1) Family dynamics,

2) Power imbalances,

3) Effects of ageing,

4) Capacity,

5) Elder abuse,

6) Pre-mediation meetings,

7) Determining who should participate,

8) Ethics,

9) Adult guardianship laws,

10) Multi-party mediations,

11) Community resources.

What the EGM Report and the ACR Objectives have in common is that recommendations are based on consultations with experts, not just in North America but in other regions as well. Additional support for these findings can also be found in research carried out at a national level in several countries. For example, in 2009 Craig Ward carried out a survey of 74 solicitors and 26 non-solicitors on training for elder mediators in the United Kingdom. (6) There is an overlap between the training topics identified by respondents to Craig Ward's survey and those identified in the ACR Training Objectives and the EGM Report. The four training topics identified in all three sources are: ageing, decision-making capacity, elder abuse and adult guardianship laws.

As a further example, a document created by a national mediation organization in Canada similarly identifies the need for mediator training. The Code of Professional Conduct for Mediators Specializing in Issues of Aging, which has been endorsed by Family Mediation Canada and several other mediation organizations, identifies many of the same training issues as those listed above. (7)

C Identified Advantages of Elder Mediation

Abuse of older adults is a serious concern, and one that is complex to deal with. Older adults who have experienced abuse commonly do not want to lay criminal charges against the person who abused them, and often place a high value on their relationship with the person who is perpetrating the abuse. (8) This imposes severe limitations on what options for response will be acceptable to the older adult victim. Processes such as mediation, which offer an alternative to the court system, are appealing to the older adult and to family members alike. This rationale served as the impetus for launching a restorative justice project in the Waterloo-Kitchener area of Canada. Program developers were aware that older adults are reluctant to use the justice system in situations where abuse is occurring and wanted to create an alternative. This project will be discussed further below.

Similarly, families in conflict over concerns about an older adult's decision-making capacity prefer not to use the formal legal process to resolve the matter. Although families have the option to seek a guardianship order in court in situations where they believe that an older adult is incapable of understanding financial or health care decisions, this option is expensive and adversarial. Furthermore, even if the court application is successful there is likely to be a negative impact on family relationships. For that reason, alternative approaches, which are cost effective and preserve family relationships, have considerable appeal for families dealing with these issues.

II CONCERNS: PROTECTION OF PARTICIPANT'S RIGHTS

Nonetheless, the potential benefit of mediation is negligible if the legal rights of the older adult participant are not protected throughout the process. The possibility that a vulnerable older adult may have his or her rights compromised through participation in elder mediation has been duly noted in the literature. (9) It is important to take every measure possible to ensure this does not occur.

It is particularly important that elder mediators be trained to recognize situations where subtle coercion of...