NATIONAL MEDIATION

CONFERENCE 2014

DR ELIZABETH BROPHY

BARRISTER/MEDIATOR, VICTORIAN

BAR

What is elder mediation?

Elder mediation is a specialised field of

mediation that focuses on conflict that arises in

the context of aging.

It encourages and promotes direct

communication among the disputing parties,

and seeks to create an environment where all

participants have an opportunity to speak and

be heard and work together to resolve issues.

Association for Conflict Resolution (ACR) What is Elder

Mediation?

What is elder mediation?

addresses issues that occur as a result of life cycle events, transitions and or losses often associated with aging and dying

may include issues of personal or medical care, financial concerns, autonomy and independence, family issues, living arrangements, planning, decision making and communication

it may include the mediation of conflicts without the direct involvement of the older person such as communication difficulties and family dynamics.

ACR, Elder Care and Elder Family Decision-Making Mediation: Training Objectives and Commentary

Why elder mediation?

Development of elder law

Demographic shift

Challenges considered unique to elder

disputes

multi-party

multiplicity of issues

complex family dynamics

intergenerational relationships

potential for capacity issues and elder

abuse

Canadian Centre for Elder Law (CCEL) (2012) 3

Benefits of elder mediation

Reduces overall stress in family systems

Enhances the level of functioning in the family support network

Improves interpersonal communications

Enhances quality of life

Delays institutional care

Reduction of incidents of elder abuse and neglect

Significant cost savings to families, organisations and governments

Department of Justice, Canada

Benefits of elder mediation

Can be beneficial

in circumstances where an older person

wants to involve family members in

decisions about their finances and assets;

when family members believe that an

older person is vulnerable to, or is

experiencing neglect, exploitation or

abuse;

where family conflict involves an older

person’s finances or assets

Bagshaw (2014); Bagshaw, Wendt and Zannettino (2007)

Types of issues that may be the

subject of elder mediation

Family caregiving

Health care

Personal care

Provision of services

community care

respite care

Private care agreements

Housing and accommodation

Safety v independence and self-determination

Types of issues that may be the

subject of elder mediation

cont’d

Later marriage

Divorce and property settlements

Estate and succession planning; inheritance

expectations

Grandparent rights

Family relationships and

intergenerational/family disputes

Advance directives and end of life care

decisions

Types of issues that may be the

subject of elder mediation

cont’d

Substitute decision making

for personal and lifestyle matters

for financial and legal affairs

Adult guardianship and least restrictive alternatives

Conflicts with service providers

standards of care in a residential facility

agreements, fees and services

Abuse, neglect and self neglect

CCEL (2012); Butt (2012)

Elder Mediation Australasian

Network (EMAN)

This network aims to:

raise awareness of elder mediation and the activities and services of mediators and others who are members of EMAN

provide information and knowledge about elder mediation for dispute resolution practitioners, other professionals and people wishing to access elder mediation services

provide links to publications, conferences and other events and to relevant resources, services and websites

promote EMAN and encourage others to join the network

http://elder-mediation.com.au/

Presentation

Competency for elder mediation

Is the matter appropriate for mediation?

cognitive capacity of the older adult

elder abuse – financial, emotional,

psychological or physical abuse

Legal advice and representation in elder

mediation

Mediator competency for

elder mediation

Elder mediation eg

family dynamics and intergenerational issues

normal aging process

end of life care

understanding the dynamics of grief and loss

ethics (self-determination, quality of process, capacity to mediate, power imbalance, ageism)

multi-party and complex mediation and who should participate

…

CCLE (2012) 92

Mediator competency for

elder mediation

Guardianship matters eg

guardianship law and process

importance of participation in mediation of respondent in guardianship case

understanding capacity

capacity to participate in mediation

substitute decision-making

financial and non-financial alternatives to guardianship and least restrictive alternatives

…

CCLE, (2012) 92

Is the matter appropriate for

mediation?

For example, where there are concerns about:

the cognitive capacity of the older adult

elder abuse

If that is my final mark I have no choice but to go to

MEDIATION

Cognitive capacity of the older

adult and participation in the

mediation

Elder mediators must have a solid

understanding of:

capacity

the law of capacity

how to asses capacity to participate in

mediation

how to accommodate incapacity in

mediation

CCEL (2012) 155

Cognitive capacity of the older

adult and participation in the

mediation

Presumption of capacity

Capacity

is decision specific

can fluctuate over time

Meaning of decision making

capacity - example

4 Meaning of decision making capacity

(1) For the purpose of this Act, other than Part 2, a person has capacity to make a decision as to a matter (decision making capacity) if the person is able to—

(a) understand the information relevant to the decision and the effect of the decision; and

(b) retain that information to the extent necessary to make the decision; and

(c) use or weigh that information as part of the process of making the decision; and

(d) communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

Powers of Attorney Bill 2014 (Vic)

Assessing capacity

Entering agreement to mediate:

[t]he law does not prescribe any fixed standard

of sanity as requisite for the validity of all

transactions. It requires, in relation to each

particular matter or piece of business

transacted, that each party shall have such

soundness of mind as to be capable of

understanding the general nature of what he is

doing by his participation.

Gibbons v Wright (1954) 91 CLR 423, 437 (Dixon CJ, Kitto

and Taylor JJ)

Assessing capacity

Entering agreement to mediate:

…the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. As Hodson L.J. remarked in the last mentioned case [In the Estate of Park], “one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case”.

Ordinarily the nature of the transaction means in this connection the broad operation, the “general purport” of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out…

Gibbons v Wright (1954) 91 CLR 423, 438 (Dixon CJ, Kitto and Taylor JJ)

Assessing capacity

Entering agreement to mediate

understand ‘the nature and effect’ of the

transaction

Assessing capacity

8 questions for the mediator to assess capacity

Can the person understand what is being discussed?

Does he or she understand who the parties are?

Does the person understand the role of the mediator?

Can the person listen to and comprehend the story of the other party?

Can he or she generate options for a solution?

Can he or she assess options?

Is the respondent expressing a consistent opinion or position?

Can he or she make and keep an agreement?

The Centre for Social Gerontology, cited in CCLE (2012) 41

Elder Abuse - definition

A single, or repeated act, or lack of appropriate

action, occurring within any relationship where

there is an expectation of trust which causes

harm or distress to an older person. Elder

abuse can take various forms such as

physical, psychological or emotional, sexual

and financial abuse. It can also be the result of

intentional or unintentional neglect.

World Health Organisation (2014)

Elder abuse - types

Financial

Emotional

Psychological

Physical

Social

Neglect

passive

active

Elder abuse and

confidentiality

Disclosure of elder abuse

Exceptions to confidentiality

legislative requirements

common law

professional standards

Provision for exceptions in agreement to

mediate

Elder abuse and capacity

issues

Safety and protection of the legal rights of the

older adult

effective training

researched based policies and procedures

- eg screening for elder abuse, capacity

practice tools - eg check lists, guides

Braun (2012)

Legal advice and

representation in elder

mediation

Every elder mediator has an ongoing

obligation to advise participants of the

desirability and availability of independent legal

advice

EMIN (2014)

Legal advice and

representation in elder

mediation

Potential roles for lawyers in mediation

absent advisor

absent observer

expert contributor

supportive professional participant

spokesperson

Hardy and Rundle (2010)

References

Association for Conflict Resolution , Section On Elder Decision-Making and Conflict Resolution Committee on Training Standards

Elder Care and Elder Family Decision-Making Mediation: Training Objectives and Commentary

Working with Older persons In Mediation: Diversity Training Objectives and Commentary

Long-term Care Mediation Training Objectives and Commentary

What is elder mediation?

http://www.acrelder.org/

Canadian Centre for Elder Law, Elder and Guardianship Mediation: A report prepared by the Canadian Centre for Elder Law (CCEL Report no 5 January 2012) http://www.bcli.org/project/elder-and-guardianship-mediation

Elder Mediation International Network, Code of Professional Conduct for Mediators Specializing in Issues of Aging 4th ed (2014) http://www.fmc.ca/elder-mediation

References

Department of Human Services, Victoria, Elder abuse prevention and response guidelines for action 2012-14 http://www.health.vic.gov.au/agedcare/policy/elder_abuse.htm

Department of Justice Canada, Exploring the Role of Elder Mediation in the Prevention of Elder Abuse http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/mp-pm/p3.html

World Health Organisation (2014) http://www.who.int/ageing/projects/elder_abuse/en/

References

D Bagshaw, Elder Mediation as a Strategy for Preventing Financial Abuse by Family Members, 7th World Summit on Mediation with Aged Related Issues, Halifax, Nova Scotia 25-27 June 2014

D Bagshaw, S Wendt, L Zannettino, Our Actions for the Prevention of Abuse of Older South Australians, (2007) http://www.sapo.org.au/pub/pub11143.htm

J Braun, Elder Mediation: Promising Approaches and Potential Pitfalls, http://www.austlii.edu.au/au/journals/ElderLawRw/2013/2.html

E Butt, Canadian Centre for Elder Law (CCEL) – Elder and Guardianship Mediation Project, http://www.austlii.edu.au/au/journals/ElderLawRw/2013/5.html

S Hardy and O Rundle, Mediation for Lawyers, (2010), CCH

Contact information

Dr Elizabeth Brophy

Greens List

Victorian Bar

205 William Street

Melbourne Vic 3000

Ph: 03 9225 8959

Mb: 0419 520033

Website: http://eldermediationservices.com.au/