2014 elizabeth brophy legal and ethical issues in mediating elder disputes
DESCRIPTION
2014, National Mediation Conference, MelbourneTRANSCRIPT
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/