Elder Mediation: Trends and Best Practices

In dispute resolution with older adults

Elder Mediation: Trends and Best Practices

With the aging population, it is important for the legal community to consider how to best address the needs of this demographic. One promising model is elder mediation, a process for resolving conflicts that commonly arise as a family member ages. For example, a conflict may arise over concerns about an elderly parent who had a stroke and now has cognitive challenges. The adult siblings disagree about whether the parent is safe at home and the older adult refuses to consider moving. Through mediation the family can discuss the current situation and make a plan for the future.

This is just one example. Not all elder mediation cases are focused on health care planning issues. The term elder mediation refers more broadly to resolution of disputes that have the following components: 1) one of the disputants is an older adult, and 2) the issues in dispute are ones that have a particular impact on older adults. A mediation case does not become an elder mediation case simply because there is a participant above a certain age. The term is usually used to refer to mediation of conflicts related to the aging process. It is common for family conflict to arise during periods of transition, and this includes transitions that occur as a response to age related changes. For example, an entire extended family may go through a period of transition following a change to an elderly parent’s health or the death of one elderly parent.

In elder mediation, it is common to have a mix of legal and non-legal issues. For example, an older adult may develop an illness that causes progressive cognitive decline. The family may contact a mediator to discuss substitute decision-making and how to explain the health prognosis to extended family members. An effective elder mediator must be well versed in legal and psycho-social issues, including laws related to capacity and substitute decision-making, social and psychological issues related to aging and intergenerational family dynamics. It also is essential to be knowledgeable about elder abuse and best practices for situations where there are safety considerations.

A mediator considering branching into this area should be aware that elder mediation has distinct characteristics. First, elder mediation often has an inter-disciplinary aspect, with presenting issues that are legal and non-legal. Second, elder mediation is a multi-party process, with family members from different generations and sometimes professionals and support people. Third, pre-mediation meetings are an important part of elder mediation. Meeting individually with participants is a common practice in some types of mediation, but not all. It is essential with elder mediation. Multiple parties often have multiple agendas, and this pre-mediation stage enables the mediator to create a feasible agenda. It also provides an opportunity to screen for elder abuse.

Elder mediation is in the early stages of emerging as an area of practice in Canada. Currently most opportunities to take specialized elder mediation training are outside Canada, most commonly in the United States. However, there are important differences in law and social context between the two countries and Canada-specific training is needed. The Law Foundation of BC is currently funding a research project to identify training needs in BC. The research project is being carried out by Joan Braun and Vivian Kerenyi. Last November fifteen BC mediators provided input about training needs at an elder mediation workshop at the Canadian Conference on Elder Law. The final report will include feedback from this event and recommendations about training. The report will be available free of charge and will be published in the fall.