Exploring the Role of Elder Mediation in the Prevention of Elder Abuse

Section 1: What is elder mediation?

A. Definitions and Description

Over the past two decades there have been many conversations throughout Canada and abroad on the value of elder mediation and the importance of recognizing it as a specialty under the mediation continuum. What is "elder mediation"? What does that term really mean and what is its legitimate claim on impacting a reduction in the incidence of elder abuse and neglect?

In its most basic description many people understand elder mediation to be a process in which a professionally trained elder mediator utilizes a "mediation process model" to address disputes involving an older adult addressing age related issues. In many cases, an older adult who is vulnerable may be at the heart of the mediation but in other cases the mediation might be called to reduce or prevent vulnerability of the older person. The problem with this limited definition of elder mediation is that it fails to address the issue of prevention. If mediators do not understand the necessity and value of the preventative aspect of mediation then due harm, unintentional though it may be, can be caused. Elder mediation will continue to be underutilized if lawyers, stakeholders and the general public do not come to understand this preventative part of mediation.

Medford states that elder mediation—like elder law—is defined by the client to be served (Medford, 2004). Mediation is a voluntary, self-determined process, in which the mediator works with all the parties to assist them in arriving at their own decisions about how best they might discuss/resolve the issues. The mediator does not give advice, does not takes sides and does not judge who is right or wrong. Discussions are confidential and held in a private, safe setting. Any agreement reached must be acceptable to all participants. Elder mediation is mediation of any conflict that involves older people, their family members, or others in their lives.

What Is Elder Mediation?

Elder mediation provides a forum for family decision-making. It is private, confidential and completely voluntary. Mediators facilitate a purposeful and directed conversation in which family members are encouraged to express their interests and concerns. Meetings are informal and are held in locations that meet the family's needs, including private homes, mediators' offices and senior living facilities (Kardasis & Trippe, 2010).

Elder mediation is a cooperative process, in which a professionally trained elder mediator helps facilitate discussions that assist people in addressing the myriad of changes and stresses that often occur throughout the family life cycle. Elder mediation typically involves larger numbers of participants including older people, family members, friends and others who are willing to give support. Depending on the situation it is not uncommon to include paid caregivers, hospital staff, nursing home and or community care representatives, physicians and other professionals (McCann-Beranger, 2008). The initial process of elder mediation can sometimes identify suspicions of elder abuse or neglect that had previously gone unrecognized, unnamed and difficult, if not impossible, to prove. When this is the case, the mediator's role is to gently assess for the presence and extent of such abuse. It is not uncommon to witness a family member acting surprised when another family member suggests that their verbal aggression is abusive. The older adult and other family members as well, often report feeling embarrassed and ashamed to tell anyone about the actual or suspected neglect or abuse. They report feeling hopeful that the behavior might change, or in denial, believing that talking will only make it worse. For the most part they refrain from even calling it abuse. The level and type of abuse and neglect, suspected or alleged will determine whether mediation will ever be considered.

Elder mediators should inform all participants that mediators are not neutral in issues of abuse or safety and have a legislative duty to report past and present abuse if a vulnerable person is in need of protection under relevant legislation and there is threat of future abuse or harm. When in doubt, the proper course of action is always to assume mediation will not be appropriate. Alternatives to mediation—such as "shuttle" mediation (Appendix B)—may be offered in serious abuse cases but only by practitioners who have specialized education and training in this area (EMC Code of Professional Conduct, 2010).

Elder mediation is based on a wellness model that promotes a person centered approach for all participants—tapping the collective creativity while exploring the many ways that will best work to enhance the rights of the older person and promote quality of life for all concerned. Often family members with poor communication skills are surprised at how, with the help of the mediator, they actually learn new ways of talking with each other. Participants in the mediation identify topics they wish to discuss or issues they wish to resolve and work towards reaching agreements that attempt to promote their well-being and quality of life. Ideas for ways of helping are generated as people come together and talk about how they can move forward supporting each other, often through some very difficult times. Elder mediation promotes communication and the involvement of more family members and others who wish to help. It is slowly becoming more common for hospitals, nursing homes, or community care homes to participate in and often to promote and initiate the process (McCann-Beranger, 2008). With regard to abuse and neglect, elder mediation can provide a safe, trusting environment where any suspected abuse can be named and plans can be safely put into place to prevent any future abuse or neglect. Sometimes relationships can be rebuilt while other relationships can be renewed or established.

Following is a sampling of the typical issues of aging that can be addressed in mediation. The potential for abuse or neglect is present within each of them.

  • Health and medical care (at home, in the community, in the hospital, continuing care and long term care communities)
  • Progressive dementias and other memory impairments
  • Caregiving
  • Financial issues
  • Guardianship issues
  • Housing issues
  • Living arrangements
  • Intergenerational relationship issues
  • New marriages and step-relative issues
  • Religious issues
  • Family business issues
  • Driving issues
  • Abuse, safety issues, self-neglect
  • Legal issues (estate, inheritance, living will, power of attorney etc.)
  • End-of-life planning and decision-making

There are a steadily growing number of elder mediation practitioners who advertise their services and views on their company websites. A representative example is the following from United States lawyer, Pat Medford's website (http://www.eldermediationservices.com):

Elder mediation practitioners are knowledgeable in the field of aging

Elder mediation practitioners are professionals familiar with the aging process and the issues involved. They understand that not all people experience decreased mental capacity as they age. Mediators are connected with the network of local resources and service providers available to elders in the community and have access to the latest updates in the aging field. They are familiar with elder abuse concerns and report new allegations of elder abuse to the authorities for investigation. Mediation would not occur between an elder and another person if elder abuse has been substantiated. Self-neglect does not disqualify a case for mediation.

The elder participates in the mediation

Mediators have an obligation to implement all accommodations that allow elders to participate to the fullest degree possible. This sometimes requires the elder to be represented by an attorney or other advocate. The Center for Social Gerontology in Ann Arbor, Michigan, has devised and tested a decision-making tool that is helpful in determining when and to what extent an elder can participate. More information is available on its Web site at http://www.tcsg.org.

Elder mediation complements the practice of elder law

Elder mediation is not a substitute for legal advice. Rather, it is complementary to the practice of elder law. Only the court can provide findings of fact or determination of legal capacity. Frequently, however, the conflicts that impede the legal work you are doing for your client involve issues the law does not address. Mediation can bring these underlying concerns to the surface as the needs and interests of those involved in the conflict are identified. In this time of state budget cuts and fewer court and judicial resources, elder mediation can be a particularly cost-effective alternative to lengthy litigation or repeated court hearings for ongoing disputes. A decision to refer for elder mediation leaves a law firm more time to perform the legal work it does best.

Benefits of elder mediation

Elder mediation benefits elders, their families, attorneys, and others in a number of unique ways. Elder mediation provides an opportunity to explore, in a confidential and safe environment, creative win-win solutions that address a broad range of decisions and conflicts that affect an elder's life. Agreement is not reached unless it meets the needs of all participants—elders (and/or their representatives), family members, caregivers, and other appropriate support persons. Since the elder is often able to participate in mediation, either directly or with the assistance of an attorney or other representative, the elder's dignity is maintained by having a voice in the life choices that are made.

Elder mediation provides an opportunity for older people to talk frankly with family members about values they hold and risks they are or are not willing to take. The older person can acknowledge his or her needs for assistance during mediation without fearing that it will lead to a judge's ruling of incapacity. If capacity is in question, elder mediation is particularly effective in exploring the least restrictive forms of, or alternatives to, appointment of a fiduciary. If an elder's defense against a finding of incapacity is questionable, or a client's support for a petition for appointment of a fiduciary is somewhat weak, mediation may provide more options than the usual hearing before a judge.

The mediation process can help improve, preserve, or even restore relationships. It can also provide a non-adversarial model of communication with which to approach future discussions. Mediation can provide elder law lawyers with a resource to deal effectively with underlying issues the legal system does not, e.g., intangible values, family history and dynamics, issues of autonomy and safety, interpersonal conflict, and quality-of-life choices.

"Elder Mediation"—What's In a Name?

Although there has been some discontent concerning the term "elder mediation" it appears that until someone can come up with an alternative name that is acceptable to mediators and users of the service alike, the current name seems to be emerging as the default choice. Criticisms about the term "elder mediation" range from claiming that the term "elder" is derogatory, and serves to isolate older people, to comments that using "elder" in the name suggests the process is not impartial as it is slanted in favor of the older person. Other practitioners have coined terms for their "type" of mediation depending on the subject matter. Examples include "generational mediation", "mediation with age related issues", "mediation with seniors", "family mediation", "eldercare mediation", "shared decision making mediation", "intergenerational mediation", "adult family mediation", "guardianship mediation", "family care mediation", "probate mediation", or simply "peacemaking", all to describe basically the same practice. It has been noted that "elder mediation in connection with elder law is what some lawyers do all the time and that elder mediation—without calling it that—has sometimes been the style of social workers who tried to get all the members of the family together, calling it a negotiated conversation" (Soden 2010). For the purposes of this paper, it will be called "elder mediation".

A review of the literature and popular media reveals a steadily increasing amount of attention being paid to the presence and value of elder mediation with increasing mention of its use where elder abuse or neglect is identified or suspected. These situations would include at least one older person who is vulnerable in some capacity. The gradual introduction of elder mediation has provided families with a forum wherein previously taboo subjects can be raised and discussed. Family members feared repercussion if they were to report suspected neglect or abuse of loved ones in community care. Family members who were too embarrassed, ashamed or afraid to voice suspicions that other family or paid caregivers were neglectful or abusive to their older family member, could now express themselves in relative safety. More importantly the family could now begin to work together to deal with the underlying stresses and plan for the improved and focused care of their older loved ones. Often it was in the elder mediation sessions that family members first voiced any concerns with regard to suspicions about abuse and neglect.

Elder Mediation Services

A recent Google web search on elder mediation returned 8,880 hits; a search of elder mediation + elder abuse returned 1,860. Such responses are indicative of the slow, yet steadily increasing spread of awareness of elder mediation services and its growing efficacy in the arena of elder abuse. It is also indicative of the number of people using the term elder mediation. The popular mediation website "www.Mediate.com" hosts a series of elder mediation articles and names of numerous practitioners, organizations and universities who advertise their elder mediation services and elder mediation training.

Depending on where you are located in Canada, the service of elder mediation may be offered by numerous practitioners ranging from those professionally trained, certified and experienced to those with little or no training, not certified and with little or no experience. Professional organizations have been developed to support practitioners who wish to acquire the necessary skills, knowledge and certification to enable them to provide a quality service. For example, there is now an Elder Mediation Canada, an Elder Mediation British Columbia and an Elder Mediation Atlantic Canada—all who work in partnership with each other, with Family Mediation Canada and with the Elder Mediation International Network. As a result, the roster of professionally trained and accredited elder mediators is steadily growing in numbers across the country. This is particularly true in regions where elder mediation projects are operating and where existing provincial mediation associations have identified elder mediation as a priority (e.g. Ontario, British Columbia and Prince Edward Island). As the list of elder mediators grows, so too will public awareness of mediation services.

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