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

Section 4: Ethical, legal and training issues

A. Ethical Issues

As new conditions arise…the law, instead of being fixed and static, becomes a living, changing entity shaped to satisfy the needs of society—Judge Brian Dixon (Soden, 2005).

Elder mediation is complementary to the practice of elder law and is based on the principles of informed decision-making, autonomy, self-determination and confidentiality. Ethical and legal issues are best addressed by elder mediators who have highly developed competencies, are sensitive and empathic, and have a variety of models and theories in their repertoire (McCann-Beranger, 2005). The duty to be competent, to apply professional knowledge, skills and abilities, and to maintain this competence over time is an ethical responsibility. All who participate in mediation have a right to receive high quality service from a competent provider (Code, Appendix B).

Yet in countries where elder mediation is burgeoning there are few restrictions—if any—that can limit who can call themselves an "elder mediator" and then hang out a shingle advertising their elder mediation practice. A practitioner, who is not qualified to practice as an elder mediator, may risk causing harm in some situations—particularly where abuse and neglect are suspected. It has become evident that the process of elder mediation—particularly the building of trust within a family—serves to gently uncover incidences of abuse and neglect within a family that heretofore would have stayed well below the radar. As the family acknowledges and accepts responsibility for such behavior, it can begin to put into place mutually acceptable remedies. A properly trained elder mediator would be sensitized to deal with such matters. Elder Mediation Canada and Family Mediation Canada appear to be among the world leaders in this regard by ensuring that mediators are trained, certified and adhere to a consistent standard.

Most elder mediation seminars, conferences, summits and workshops dedicate a portion of their training time to ethical considerations and legal issues. World summits on mediation with age related issues held in Ottawa, Dublin and Chicago over the past three years have featured panel discussions on the topic. In 2007 Temple University in Philadelphia hosted a symposium on Ethical Standards for Elder Mediation. Ethical principles and issues are a basic part of elder mediation training with the intent to stimulate the elder mediator to think further about the issues identified so that he/she can form a sound basis for ethical decision making. In Canada, certification as an elder mediator requires adherence to the Elder Mediation Code of Professional Conduct (Appendix B to this paper), and sets out ethical standards for the practice of elder mediation.

Mentoring and coaching are popular among elder mediators as they learn and challenge each other in ways that result in heightened service to the participants of elder mediation. Such approaches stimulate discussions and questions about the ethical standards for professional elder mediators. Examples of some of these ethical questions and issues include:

  • Is this case appropriate for elder mediation?
  • Who needs to be invited to participate? Is everyone included? Will everyone need to attend every session? If not, why not? If so, who decides?
  • Should referrals be made? If so, to whom? Why?
  • Are there particular screening requirements needed? If so, who does the screening?
  • Autonomy and competence of all participants
  • Do I have the competencies to undertake this mediation?
  • Am I committed to being mindful of the invisible boundaries to my first profession—a lawyer who is acting in the capacity of a mediator; a psychologist who is acting in the capacity of a mediator?
  • How do I draw on my primary discipline to enhance my practice of elder mediation?
  • Considerations of impartiality and neutrality
  • Considerations that arise as a result of abuse, alleged abuse, safety issues, neglect and self-neglect and the importance of continuous screening for abuse and neglect throughout the process.
  • Are there any conflicts of interest?
  • Ensuring confidentiality and the limits to confidentiality
  • Are there any capacity concerns? What is done to ensure all voices are heard? Does an advocate need to participate? Who decides? What is their role?
  • Should the lawyer and/or other specialists be involved in the sessions? Who decides?

Nicole Garton-Jones, a practicing lawyer and elder mediator from British Columbia presented a thought provoking workshop entitled, Elder Mediation and Ethics: An Overview at the Third International Summit on Elder Mediation in Chicago (May 2010). The presentation highlighted ethics, voluntary/mandatory mediation, capacity and confidentiality as they apply in Canada and is available on the Slideshare Network website (Garton-Jones, 2010).

B. Legal Issues

While there is evidence of continued interest in formalizing elder mediation in legislation as a facilitative, consensual, and confidential process (Rickard-Clarke, 2009), there is currently no such legislation in Canada. As noted earlier, the Canadian Centre for Elder Law through their Elder and Guardianship Mediation Project—is gathering pertinent research and consulting key stakeholders in order to provide information that can serve to facilitate—both the adoption of mandatory mediation in British Columbia and training for elder mediators who work with older clients (Braun 2009).

The Code of Professional Conduct Specializing in Mediation with issues of aging (Appendix B), includes a section on Inter—Professional Relations that notes:

  • The elder mediator must respect and invite complementary relationships between mediation, legal, mental health and other social services and care providers and be aware of community resources appropriate for referral.
  • The elder mediator should promote co-operation and awareness with other professionals and be aware of their ethical responsibility to encourage clients to use other professional resources when appropriate.

It is recognized that it is crucial that participants who attend elder mediation are aware of their legal rights and responsibilities and that a specific legal opinion from a lawyer may be valuable and often necessary as families negotiate their way to providing quality care and preventing or eliminating any potential for abuse and neglect (McCann-Beranger, 2005). Participants in mediation are often surprised to realize they do not have all their legal documents up to date and are relieved to renew their acquaintance with their lawyer or to hire a lawyer to provide this critical assistance. Powers of attorney, wills, living wills, health care directives, are some of the many documents that the lawyer will need to review with the family. A thorough and thoughtful review by the legal professional with the participants will provide a sense of security and confidence that everything is in order and dramatically reduce the likelihood for potential conflict in the future (Reagh, 2008).

In one instance, a family reported having no need to seek legal advice and did so only because the mediators' protocol included the family seeking legal input. The mother, who had insisted all her legal documents were up to date, realized that one of her daughters was unintentionally missing from the will. The will had been hastily drawn up several years before—the same week she had witnessed the death of her husband. Somehow, only three of her four children were named in the will—a calamitous, unintentional oversight at the time. The forty-year old son lived with his Mother in the family home and concerns around neglect from the other three children had initiated the search for outside supports. The fourth child, who had inadvertently been left out of the will, was the most ardent support for the mother and ironically, the one on whom she most depended. The lawyer who had been hastily sought at that time hadn't known the family previously, had limited elder law experience and had not realized the extent of the mother's grief. As a result, the lawyer asked the mother to sign a will and other documents when she was still in shock and despair at the loss of her husband and had little awareness of what she was signing.

Just as elder mediation has been maturing as a specialty within the general practice of mediation, so too has elder law been maturing as a specialty within the general practice of law. Lawyers who aspire to specialize in elder law will be required to develop knowledge and competency in such fields as estate law, health care law, disability law, public benefits law, real estate law and administrative law (Reagh, 2009).

Increasingly, more elder law lawyers are incorporating elder mediation services into their law practice. Elder mediation can be used throughout the course of a lawyer's work with his or her client and can be used at any stage of conflict. It can precede consultation with a lawyer or can be interspersed with a client's visits to the lawyer. Lawyers may be consulted during mediation and, if a written agreement is reached, each participant is advised to consult a lawyer before signing. Lawyers often participate in mediation, representing the older person or another participant or serving as legal advisors. Although elder mediation is most effective when it occurs early in a dispute, it is never too late to be considered (Medford, 2004).

The Law Commission of Ontario (LCO) has been working on an extensive project entitled "Development of a Coherent Approach to the Law as it Affects Older Adults (2008)" to develop a framework that can serve as a reference to improve the appropriate application of the law to older adults. Part of the interim report will include case studies of issues in the law as it affects older adults that illustrate particular problems, barriers or best practices in increasing access to justice for older adults. It is anticipated that at least one of these case studies will be on elder mediation. This project will involve multidisciplinary analysis to ensure that the issue is analyzed through critical lenses based on gender, race and similar factors.

According to a preliminary report (http://www.lco-cdo.org) "Report on the Preliminary Consultation: Moving the Project Forward" there have been many suggestions for improving supports to older adults to ensure easier access to legal system, including: expanded legal aid supports for older adults; better education, training and supports for justice system personnel on issues related to older adults; improved accessibility and accommodation for disability-related needs; and education and outreach to all of the diverse communities that make up the older adult population. In addition, many submissions recommended that the LCO consider, not just how older adults could be better supported to access current systems, but how alternative compliance and enforcement systems could be designed to ensure both easier access and better outcomes for older adults in relation to the law.

In their submission to the LCO, the Ontario Bar Association noted that mediation and arbitration are becoming increasingly popular and an effective means of resolving disputes, and can provider speedier and more economical access to justice in many situations. As an example, the University of Windsor Law School's mediation service provides specialized services for older adults who have been the victims of financial abuse.

Recent legislation and private practice experience indicates that elder mediation, including guardianship matters, are important new areas of expansion in Canada. There is a strong mediation community throughout Canada and respect is growing for the practice of elder mediation (Braun, 2009). Many legal, ethical and training issues will be addressed through the project referred to earlier, entitled Elder and Guardianship Mediation Project. Issues under exploration include:

  • impartiality of mediations
  • capacity to mediate or participate in the process
  • abuse / neglect / self-neglect
  • conflicts of interest
  • confidentiality
  • mediator accreditation / training

Due in part to the relatively low costs of mediation as compared to litigation, more and more families are turning to mediation as a way of resolving family conflict. Mediation may be well suited for many situations, but the same issues listed above must be taken into account to ensure that the process is fair, supportive, and respectful of the parties' rights. In this project the Canadian Center for Elder Law is gathering pertinent research and consulting key stakeholders in order to provide information essential for both the adoption of mandatory mediation in British Columbia, and for mediators who work with older clients (Braun, 2009).

C. Capacity—Ethical and Legal Considerations

One of the most prominent areas of discussion among elder mediators—an issue that straddles both ethical and legal domains—is that of "capacity" to participate in mediation. Capacity refers to the ability to understand the nature and consequences of a decision, in the context of available choices at the time the decision is to be made. There can be many definitions of capacity including task specific legal definitions, contractual capacity, donative capacity, and the capacity to make health care decisions.

In Canada, "Legal capacity", substitute decision-making, and adult guardianship are provincial matters governed by statutory schemes that are different from province to province. In Ontario, for example, the definitions and rules for assessing mental capacity appears in the Substitute Decisions Act and the Health Care Consent Act and can vary depending on the type of decision involved (Bongard, 2010). For purposes of this paper, the discussion of capacity is limited to the issues that arise in the context of elder mediation that involves the mediator assessing the competencies of older adults to understand and participate in the elder mediation process. In this context, Elder Mediation Canada's Code of Professional Conduct for Mediators Specializing in Issues of Aging offers the following guidance:

When providing mediation services to people who are unable to give voluntary consent, elder mediators must include them or their representatives in decision making as appropriate. Elder mediators must recognize the need to balance the ethical rights of participants to make choices and recognize participants' capacity to give consent or agreement to mediation services (Code of Professional Conduct, Appendix B).

It is necessary to explore whether the participants are cognitively capable of engaging in the mediation process or if there are family members who are able and appropriate to represent the person's wishes. If the elder mediator believes that any participant is unable to participate meaningfully, and if there is no appointed guardian ad litemor there is no agreement on who could be the spokesperson, they must suspend or terminate the mediation and encourage the participants to seek appropriate professional help. The elder mediator ensures that all voices are represented in the mediation process.

If an advocate has been appointed for a participant who is not capable of consent, the elder mediator has a responsibility to that person (the person who is not capable of consent). The elder mediator and the advocate will establish the level of participation in the mediation process. Depending on the jurisdiction concerned, the mediator must inquire as to the provisions of a living will, Power of Attorney or similar legal documents that protect the wishes of the vulnerable person (Code of Professional Conduct, Appendix B).

It has also been noted that the elder mediator decides with the participants which model/process will best fit the situation and ensures that ethical and legal concerns relating to competence and capacity are fully explored and explained. The elder mediator always assumes the participant in question has some level of capacity. Even if capacity is lacking in one area it is often present in another. One cannot assume a person lacks capacity for decision making until certain that explanations have been provided in a way that is relevant and appropriate to the participant's individual circumstances. A person lacks capacity to make a particular decision if s/he is unable to understand the information relevant to the decision, is unable to retain that information, and is unable to use or weigh the necessary information (Rickard-Clarke, 2009).

Where necessary, elder mediators review recent assessments and refer for other necessary or updated assessments to ensure that all participants are able to focus on individual issues. Mediator's ensure the participants can see the interrelationship between and around the issues and that they can understand cause and effect, match events and consequences and take responsibility for their own actions. Mediator's also ensure participants can conceive of and respond to common measures of time in the context of scheduling, can comprehend the nature of a behavioral commitment, can identify desired outcomes and can understand the mediator's role (Coy and Hedeen, 1998). Sometimes decisions about capacity are value judgments, such as when dementia and cognitive impairments are involved. In these circumstances the physician and/or geriatrician or other specialists are best suited for assessing and providing recommendations to the elder mediator. Lawyers often refer to elder mediation and then assist their client in understanding the process and consent to the outcome reached. Self-determination is crucial, as is the important distinction between capacity and competencies.

D. Training Issues

For elder mediation to fully realize its potential to resolve conflicts related to issues of aging and to prevent the abuse and neglect of older family members, it is critical that elder mediators deliver a consistent and credible standard of practice, that they operate under a code of ethics (Appendix B) and that they achieve a level of certification that ensures they are qualified to deliver the professional service of elder mediation.

Based on interviews and literature reviews it would appear that Canada is leading the way with respect to the availability of consistent training standards for elder mediators—peer reviewed or otherwise. Elder Mediation Canada (www.eldermediation.ca), in consultation with Family Mediation Canada and other elder mediators across the country, has developed certification standards, a code of ethics and training standards (see Appendices B & C). Acceptance and adherence to these standards is growing steadily across the country, and being adopted in Ireland and Switzerland as they are beginning to develop their own elder mediation services. Depending on where you are located in Canada elder mediation services may now be available, and increasingly, by elder mediators who are appropriately trained and certified.

The Association for Conflict Resolution in the United States—the largest professional association for mediators, arbitrators, educators and other conflict resolution practitioners in that country—has recently established a section on elder mediation but as yet have not released any specific elder mediation standards or certification. Some elder mediators from the United States are involved in Elder Mediation International Network (EMIN) certification. Other countries surveyed reported no specific training standards for elder mediation. Elder Mediation Canada recognizes that there are currently a number of different certification/accreditation credentials across the world for family and community mediation but none specifically for elder mediation. Thus, any development of a truly national/international standard for elder mediators will need to be set up in an inclusive way while supporting the credibility, and integrity of what currently exists in other national and provincial/state/country organizations.

Elder mediators who are trained in this specialty apply their highly developed people skills to the intricate life issues facing older people with sensitivity, acute listening skills and inclusive language to make sure the mediation flows respectfully. In mediating with age related issues it is generally understood and agreed that elder mediators need more specific and additional training—particularly in regards to sensitivity of issues related to aging—than do family mediators. (Specific and specialized training components and considerations are available in the Code of Professional Conduct—Appendix B).

Elder Mediation Canada, in partnership with Family Mediation Canada, has produced a Certification and Training Standards Guide (Appendix C) that lays out the requirements for certification for Elder Mediators. A certified Elder Mediator (Cert.EM) has at least 100 hours of basic mediation/family mediation training and an additional 100 hours of age related elder family mediation training including the following topic areas: family life cycle and intergenerational dynamics, elder abuse and neglect, family and elder law, power imbalance, grief and loss, ageism, guardianship, dementia and chronic diseases, financial and ethical issues. Certified elder mediators have current membership in their national/country mediation organization and adhere to the code of professional conduct. They hold liability insurance for the practice of elder mediation.

Alaska's Adult Guardianship/Conservatorship Mediation Program reported that mediators needed considerable substantive knowledge including understanding the system surrounding these cases (agencies, legal proceedings, relevant statutes and court rules, and other resources), family dynamics, and issues related to abuse and exploitation of vulnerable adults. Mediators should understand the impacts of aging, mental health, developmental disabilities, substance abuse, dementias and trauma as they may affect capacity, care-giving needs, and the support and service resources related to them. Mediators should have empathy and compassion for those involved. Their communication skills and manner need to foster rapport and trust building. Understanding of cultural issues is also vital (Largent, 2009).

Training in Other Countries

Elder mediation has not been on the radar as a specialty in most countries thus training is sparse but opportunities are slowly increasing. Elder Mediation International World summits to date have been welcomed in four countries: Canada, United States, Ireland and Switzerland and interest is growing. Three day training opportunities with pre-conference workshops are well attended by motivated mediators who wish to specialize or broaden their practice. One of the outcomes of the World Summits is increased knowledge of the subject areas as well as increased awareness of the importance of standards.

The Code of Professional Standards (Appendix B) is readily adaptable and is being used as a template in Switzerland, United States, Ireland, Australia and Great Britain. Elder mediators, regardless of professional background are challenged to become familiar with the standards as a way of monitoring their progress on adhering to a person centered philosophy.

The only way to find out the credentials of the elder mediation in most countries is to directly ask the mediator. In Canada, both Family Mediation Canada and Elder Mediation Canada can assist in finding a mediator in your area. In the United States such organizations as the newly formed Elder Decision-Making & Conflict Resolution Section of the Association for Conflict Resolution, the National Eldercare Mediator Network, Mediate.com or eldercaremediators.com can all offer access to names of people who are offering elder mediation services.

In the United States, as in most other parts of the world, there is no national credentialing or formal licensing for elder mediators. As a result credentialing standards vary from state to state. Private, for profit companies are forming and are creating services and rosters for elder mediators. The Centre for Social Gerontology has been a leader in guardianship mediation training and resources.

The European Mediation Network Initiative has many organizations working to promote mediation. One of its aims is to serve as a means to exchange information, know-how and results from research toward the diffusion of mediation within our societies. It has held three annual conferences to date and it is anticipated that within the next few years elder mediation will work its way onto the agenda.

The Mediators Institute of Ireland (MII) has taken an in-depth look at both Elder Mediation and Peace Building. They concluded that it was important to have a credible, transparent process of assessment before approving a mediator to practice. Not only is it important to have appropriate qualifications to start but also practicing mediators must engage in continuing professional development. MII now has a professional development program that requires ongoing education, defined practice hours, and reflective practice to ensure skills are kept up to date (Erwin, 2010). A number of Irish elder mediators are working toward their international elder mediation certification—some will receive their certification at the Switzerland summit scheduled for May 2011.

Australia's current research project on the prevention of financial abuse of older people mentioned earlier in this document, will influence training curriculum as it aims to develop and evaluate specialized models of family mediation for primary and secondary levels of prevention that privilege the interests of vulnerable older people and allow for their voices to be heard in safety, directly or indirectly. Specialized aspects of the mediation strategy (such as screening tools and strategies for including the voices of older people) will be implemented, evaluated, modified and documented and no doubt will impact the development of curriculums on this topic.

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