Elder Mediation

1. Elder
Mediation
An emerging area of practice
Professor Robyn Carroll
Law School, University of
Western Australia
robyn.carroll@uwa.edu.au

2. (image courtesy of EMAN, http://elder-mediation.com.au)
Welcome

3. 1. What is elder mediation?
2. A typical scenario – Discussion
3. Mediation where an elderly person has impaired
decision making capacity – the legal setting
4. An emerging specialist area of practice
Outline of presentation

4. A ‘focussed, respectful process – usually multi-party, multi-
issue and often intergenerational – whereby a trained
elder mediator:
 ensures, as much as possible, that all who need to be
are present or at least represented in the mediation;
 facilitates discussions focussing on present strengths
and assists participants in exploring any issues or
concerns...’
Code of Professional Conduct for Mediators Specializing in Issues of
Aging, 5th Edition June 2015, endorsed by EMIN and EMAN and
others.
1. What is Elder Mediation?

5. A ‘successfully mediated outcome is one where the
quality of care and the quality of relationships have been
maximised for all parties, in particular for the older
person’
Code of Professional Conduct for Mediators Specializing in Issues of
Aging, 5th Edition June 2015, endorsed by EMIN and EMAN and
others.
Elder Mediation: Defining the Outcome

6. •Health care – at home, in the community, in the hospital or in
continuing care and long term care communities.
•Financial concerns
•Housing and living arrangements
•Medical decisions
•End of life decisions
•Intergenerational relationships
•New marriages and step-family situations
•Financial relationship with children and others
•Abuse & neglect
•Family business, succession planning
•Driving
•Guardianship and choice of guardian
•Estate planning
Elder Mediation: Application

7. • Our ageing population and implications
• Growing awareness of the need for and benefits of
elder mediation
• Recognition as a global issue
• Identification of distinctive characteristics of elder
issues
• Calls for specialist knowledge and skills, training and
accreditation
• Ongoing debates concerning supported decision
making and substitute decision making
Elder Mediation: Trends

8. • Promoting autonomy and best interests of the older person
through process adaptation
• Working with diminished and fluctuating capacity for
decision making
• Intake and process management with abuse in mind
• Intergenerational, distinctive sources of conflict
Elder Mediation: Challenges

9. • Distinction between:
• Mediating with the older person (with them present)
• Mediating about the older person (with their presence)
• Distinction between mediation as:
• A planning process
• A dispute resolution process
• Issues of uptake for each of these
Elder Mediation: Themes

10. • Mediation as a process to meet the need for difficult
conversations
• Ensuring human rights of autonomy and participation
are respected
• Concerns about the vulnerability of older persons to
compounding abuse
• Approaches to process design and degrees of
orthodoxy
• Eg, who is at the table and how to bring them along
• Outcomes: consultation only; agreements, binding and
non-binding
Elder Mediation: Issues to consider

11. John and Lillian are in their 70s. They have 4 adult
children. Two years ago John was diagnosed with
dementia. Lillian and John decided to arrange their life so
that John could remain at home. Lillian is now suffering
considerable carer stress. She is finding it difficult to make
decisions about what is best for her and for John now and
in the future. She feels her children do not understand the
practical and emotional support she needs to care for John
on her own and eventually to place John in care.
2. Discussion

12. John has now moved into a dementia specific aged care
facility (ACF). A few months ago Lillian was hospitalised after
she had a fall at home and suffered a blow to the head. She
had memory problems and was unable to concentrate for any
length of time. Upon the recommendation of the social
worker at the hospital her children applied for and were
appointed as her guardian. They are also using the Enduring
Power of Attorney (EPA) that Lillian made a few years ago.
Upon discharge from hospital Lillian finds herself living at the
ACF with John. Her memory has returned and she wants to
take back control of her affairs. She is having difficulty
making her wishes known to the ACF staff or her children.
2. Discussion

13. What scope is there for mediation when an elderly person
might be the subject of an application to the State
Administrative Tribunal (SAT) under the Guardianship and
Administration Act 1990 (WA)?
Mediation:
• Before an application to SAT is made?
• After an application to SAT is made?
• After an appointment of a substitute decision maker?
3. Diminishing legal capacity: issues

14. Elder Mediation Australasian Network (EMAN)
http://elder-mediation.com.au
(image courtesy of EMAN website)
(Acknowledgements to Assoc Prof Dale Bagshaw, Uni SA)
4. Practice Developments: Australia

15. Elder Mediation International Network (EMIN)
http://www.eldermediation.ca/
Dignity, respect and independence for older people.
(Acknowledgements to Judy McCann-Beranger, Canada)
Practice Developments: International