The Challenges of Elder Mediation: Part I

Elder Mediation

The Challenges of Elder Mediation

Part I: Foundational Concepts

D.M.

This is Part I of a two part series of posts by D.M., a current JD student at Bond University.

Elder mediation is an important and growing topic in dispute resolution. This area of dispute resolution is important because Australia’s elderly population has been projected to grow to 8.8 million by 2057 (22% of the population). This is an increase from 3.8 million (15 % of the population) today. With such a dramatic increase, the demand for elder mediation seems sure to grow exponentially in the future.

‘Elder’ can be defined as ‘a person of greater age or seniority’. In an Australian context, this might be defined as a person who is aged 75 years or over. The highest prevalence of abuse within this age group is from the age of 80–85 years. Abuse of various forms is an important driving force behind the emergence of elder mediation.[1] Abuse can manifest as financial, emotional, physical or sexual abuse or neglect.

Why mediate elder disputes?

Elder mediation, when used correctly, can be an effective preventative process for current or potential elder abuse. Mediation efficacy decreases as abuse severity increases. Thus, mediation at an earlier stage of abuse or neglect will act as a more effective preventative measure. Furthermore, elder parties often prefer mediation over litigation as it is a more discreet method of alleviating an abusive situation and it is easier to maintain the relationships between the parties.[2]

Elder parties may prefer to mediate because it is less confrontational than litigation and confronting an abuser, especially when they are also the caretaker of the elder party, can strain the relationship if the matter proceeds to litigation. Thus, mediation retains the relationship between both parties while keeping the process confidential, which further works to retain these potentially decades-old relationships.[3]

Mediation is also preferable from an ethical standpoint because one of its purposes is for the elder party (generally the weaker party) to gain self-determination. Self-determination in elder mediation is achieved by not only informing the elder party of their rights, but also helping them achieve some independence in relationship with the other party. If the mediator correctly establishes the elder’s capacity, this may also correct any ageism biases and other incorrect perceptions of this issue.

Features of elder mediation

The parties to elder mediation are often family members, friends, fellow residents of aged care homes, caregivers or any combination of these roles. As a result, the mediator must consider questions such as whether parties should meet separately with the mediator or who should be present at each stage of the mediation. Power imbalances may arise in elder mediation due to the potential existence of abuse or neglect, combined with the fact that the perpetrators in the majority of elder abuse cases are the children or caretakers of the elderly party.

The circumstances of elder mediation may pose a challenge to the focus mediation places on self-determination. Power disparities may also create a real or perceived incapacity of the elder party to enter mediations.[4] Capacity is central to a process based on the principle of self-determination which requires parties to make their own informed choices on settlement options. The issue of capacity can be influenced by mental  or physical health problems (both chronic or temporary) or ageism.

My next blog post will examine the challenges of elder mediation in more detail and recommend some possible strategies and solutions.

[1] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 5.

[2] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 425.

[3] Braun, ‘Elder Mediation’, 4.

[4] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

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